July 5, 2008
Washington Post editorial supports rehearing in Kennedy child rape case
I am very pleased to see that the Washington Post, in this new editorial, is encouraging the Supreme Court to rehear the Kennedy child rape case in the wake of the discovery that the Justices got a key fact about federal law wrong. Here is how the effective editorial ends:
The Supreme Court's legitimacy depends not only on the substance of its rulings but also on the quality of its deliberations. That's why we think the court needs to reopen this case -- even though we supported its decision. The losing party, Louisiana, still has time to seek a rehearing, which the court could grant with the approval of five justices, including at least one from the majority. The court could limit reargument to briefs on the significance of the UCMJ provision. We doubt the case will come out much differently; we certainly hope not. But this is an opportunity for the court to show a little judicial humility. Before the court declares its final view on national opinion about the death penalty, it should accurately assess the view of the national legislature.
As explained in this recent post, I also believe the Court should rehear Kennedy, though I am not optimistic that the Justices will take the case up again. That said, I think this WaPo editorial can and should provide some important momentum to the Kennedy rehearing buzz.
While we are inside the Beltway, it is interesting to speculate whether any other prominent voices might actively urge a SCOTUS rehearing. Specifically, what about Senator John McCain, who bashed the Kennedy ruling in a recent speech to law enforcement (noted here and here)? Perhaps Senator McCain can introduce in the Senate a resolution urging the Justices to rehear Kennedy. Perhaps Senator Obama will show his true commitment to a new politics by co-sponsoring such a resolution. (Regular readers may recall that the Senate in summer 2004 passed a resolution encouraging the Justices in the wake of the Blakely decision to consider Blakely's impact on the federal sentencing system.)
As the Washington Post editorial effectively highlights, the fact that the Kennedy case deals with a high-profile and controversial issue may make it even more important and valuable for the the Justices to grant a rehearing. After its rulings in Kennedy and Heller, many observers (justifiably?) see the Court acting like a super-legislature. Just a decision to grant rehearing in Kennedy may go a long way toward showing that the Justices are at least trying to do more than just make partisan policy calls.
Some related recent posts:
A sentencing commission working on criminal code improvements and revision
I am not quite sure what impressese me more: the fact that my home state sentencing commission is working seriously on criminal code improvements or the fact that my home town newspaper has this entertaining article on the commission's work, headlined "State commission has plan to translate revised code." Here are snippets from the article:
Lacking plot and drama, the Ohio Revised Code will never read like a J.K. Rowling or Danielle Steel novel. Still, some think legislators should strive to make Ohio's law of the land more readable to those who didn't graduate cum laude from law school.
Among the duties of the Ohio Criminal Sentencing Commission is to find ways to make the revised code more reader friendly. To that end, it has crafted an 88-page report that suggests how to make some felony sentencing statutes easier on the brain and provides general guidelines to lighten text throughout the code.
"So much of the code is hard to read, not just for an average citizen who might be inquiring what their situation might be. It's hard for lawyers, prosecutors, judges and legislators," said David Diroll, executive director of the commission.
The cynical view is that laws are purposely written to confuse mere mortals, ensuring permanent employment opportunities for lawyers. "It isn't quite that, but there is a hubris sometimes that goes with doing this sort of work, that you want to show what you know," said Diroll, who used to work for the Legislative Service Commission, the office that turns legislators' ideas into legal text....
The Sentencing Commission picked 16 felony sentencing statutes that it helped craft in 1996 but have since been heavily revised. It says the laws can be reduced from 30,211 words to 14,595, a 52 percent cut, without losing any meaning.
I would be interested to know if any other state sentencing commissions are doing work like this on state criminal code improvement, and eager to vote for any federal candidate about making code revisions a key part of the US Sentencing Commission's modern mandate.
July 4, 2008
Thinking creatively about different SCOTUS short lists
The holiday times, the end of a notable SCOTUS Term, and this new Findlaw article (titled "What Kind of Justices Might a President Obama Appoint? Senator Obama's Reactions to Recent Supreme Court Decisions Show that the Answer May Not Be Easily Predictable") have me thinking creatively about what a truly "unpredictable" SCOTUS short list might really look like.
Consider, for starters, that modern SCOTUS appointments are usually older individuals even though, as detailed here, the "average age of the delegates [at the Constitutional Convention] was 42 and four of the most influential delegates -- Alexander Hamilton, Edmund Randolph, Gouvernor Morris and James Madison -- were in their thirties." A truly creative SCOTUS short list might include some folks born after the end of the Warren Court.
Consider also that all the current member of the Court were elevated from federal circuit courts even though, as detailed here, dozens of Justices throughout history have come to SCOTUS with no prior judicial experience. (Notably, the list of SCOTUS judicial rookies includes John Marshall, Louis Brandeis, Harlan Fiske Stone, Felix Frankfurter, William O. Douglas, Robert Jackson, and Earl Warren.) A truly creative SCOTUS short list would include some folks who have never donned a black robe.
Finally, we should not leave out classic identity dynamics given that 106 of 110 Supreme Court justices in US history have been white men. A truly creative SCOTUS short list would certainly include many folks with diverse personal characteristics and backgrounds.
So, for either or both leading Presidential candidates, how about using the comments to start developing a truly creative SCOTS short list?
(Cross-posted at Prawfs)
Some related SCOTUS short-list posts:
- Insider myopia and the diverse benefits of a short bench
- Does SCOTUS need a trial judge?
- Developing a SCOTUS short list of district court judges
- Great insights on SCOTUS and criminal justice
- Brave New Justice and sentencing issues
- Will the next SCOTUS nominee have any criminal law background?
Celebrating liberty in the country leading the world in incarceration rates
Writing over at the Huffington Post, J. Richard Cohen has this new commentary titled "Mass Incarceration of Children Must End." Though focused on tough juve sentencing, the piece reminds everyone of this key datum as we celebrate liberty on today's holiday:
Our nation now spends $65 billion each year to incarcerate 2.3 million people — more than any other country. This is not the inevitable result of cracking down on crime. It's the result of a series of failed policies enacted over many years.
I could link to so many prior posts detailing the ironic reality that our nation's leaders speak grandly about liberty and freedom while doing little about our nation's dramatic willingness to deny liberty and freedom to so many of its own people. Here are just a few post that cover the (still under-examined) modern American story of mass incarceration:
- Recalling the human realities of mass incarceration
- "Why Are So Many Americans in Prison?"
- Hoping for a presidential town hall on crime and punishment
July 3, 2008
My (already dated) musings on the SCOTUS criminal docket
Though I wrote this piece a while ago and have not had a chance to update it recently, now finally appearing at this link at SSRN is a draft of a short piece of mine complaining about the Supreme Court's tendency to consider on the merits too many death penalty cases and too few other cases. (These complaints should be familiar to regular readers, but this draft has a lot more footnotes and a few new ideas than my usual blog grumbling.) The piece is titled, "A Capital Waste of Time? Examining the Supreme Court's 'Culture of Death'," and here is the abstract:
In a lecture at the University of Chicago, U.S. Supreme Court Associate Justice Stephen Breyer highlighted that he has two jobs: the first job, he explained, is deciding what to decide, and the second job is then to decide what the Court has decided to decide. Many devote careers to analyzing and criticizing exactly how Supreme Court Justices perform their second job of deciding the cases the Court has decided to decide; far less attention has been devoted to analyzing and criticizing exactly how Supreme Court Justices perform their first job of deciding what to decide.
This commentary directs attention (and criticism) toward the Justices' performance in their first job of deciding what to decide in the arena of criminal justice. This commentary contends the Supreme Court has recently done a poor job setting its own agenda and its failings have had a negative impact on state and federal legal systems. Specifically, the Supreme Court has become caught up in a "culture of death": the Court devotes extraordinarily too much of its scarce time and energy to reviewing death penalty cases and adjudicating the claims of death row defendants. As the title of the commentary is intended to suggest, this phenomenon a "capital waste" that results in various problems for the administration of both capital and non-capital sentencing systems.
Beyond criticizing the Supreme Court's troublesome affinity for obsessing over capital cases, this commentary explores under-examined agenda-setting dynamics that shape the Court's engagement with legal issues and its work-product. In addition, as a final coda suggests, changes in Court personnel might prove to be as consequential with regard to how the Court sets its docket as with regard to how the Court resolves cases.
Because this piece is very much a work in progress (and needs to be updated to reflect the last few months of SCOTUS activity), I am eager to get feedback and reactions via comments or e-mail.
Ninth Circuit ruling on sex offenders under AWA
Two notable Eighth Circuit sentencing wins for federal prosecutors
Two rulings from the Eighth Circuit today reflect the reality that federal prosecutors still seem to prevail more often than not in tough sentencing appeals. Here are links and unofficial summaries from ,the circuit's official opinion page:
US v. Femsteer, No. 06-2059 (8th Cir. July 3, 2008) (available here):
On remand from the Supreme Court of the United States for further consideration under Gall. The district court committed procedural error and abused its discretion in sentencing defendant to 120 months because, in attempting to explain its reasons for varying downward 240 months from the bottom of the applicable Guidelines range, the court gave significant weight to irrelevant factors (defendant's age, the absence of a weapon in his prior crimes and his completion of probation) and failed to support the extent of its variance with sufficient justifications.
US v. Dodds, No. 07-3403 (8th Cir. July 3, 2008) (available here):
District court carefully considered the factors set out in 18 U.S.C. Sec. 3553(a), and defendant's sentence was not unreasonable; assuming, without deciding that the government misrepresented defendant's relevant conduct at sentencing, there is no evidence that the court considered those statements, and they are not grounds for resentencing.
A defendant did prevail on a sentencing issue, however, in US v. Anderson, No. 07-1181 (8th Cir. July 3, 2008) (available here), where the panel turned away the government complaints about the unreasonableness of a below-guideline sentencing in a white-collar case.
Looking ahead to SCOTUS docket dynamics
Even though there was a record low number of decisions this past Term, the Supreme Court had something for nearly everyone interested in criminal justice issues. Gall and Kimbrough and Irizarry provided federal sentencing fans with a lot of consider, Baze and Kennedy kept death penalty debates heated, Danforth and Medellin and Boumediene covered great fed courts issues, and there were also a number of large and small statutory interpretation and criminal procedure issues addressed.
Next Term, as Tony Mauro highlights in this terrific Legal Times article, the Court seems poised to have a heavier docket and appears eager to do more work earlier in the SCOTUS season. Notably, though, with the exception of the Hayes gun case and the Ice consecutive sentencing case, the Court's criminal justice docket for next Term seems to pale in comparison to the Term just completed.
Of course, only about half of the SCOTUS docket for next Term is set, and I suspect a few high-profile criminal cases will be added in the months ahead. In particular, I think there is a decent chance one or more constitutional issues related to sex offender regulations could (and should) make it to the Court. In addition, I suspect at least a few more post-Booker issues might still garner the Justices' attention (perhaps acquitted conduct or other burden-of-proof issues).
There are lots of other matters that, viewing from the ivory tower, I'd like to see the Court take up (like a non-capital Eighth Amendment case involving a crazy-long mandatory prison sentence). But, since I am now extra eager to be attuned to practitioner perspectives, I wonder if those laboring in the criminal justice trenches might use the comments to suggest other issues deserving the Justices' attention ASAP.
Some related posts:
- Defense lawyers win: initial reflections on the SCOTUS term that was
- Great SCOTUSblog review of criminal side of SCOTUS docket
- CJ Roberts and sentencing law: fixing Eighth Amendment jurisprudence
- Great insights on SCOTUS and criminal justice
- Brave New Justice and sentencing issues
Could all the mistakes in Kennedy be corrected?
Linda Greenhouse spotlights in this new article that a key legal mistake in the Kennedy child rape ruling is drawing attention and a notable admission of error:
In a highly unusual admission of error, the Justice Department acknowledged on Wednesday that government lawyers should have known that Congress had recently made the rape of a child a capital offense in the military and should have informed the Supreme Court of that fact while the justices were considering whether death was a constitutional punishment for the crime.
“It’s true that the parties to the case missed it, but it’s our responsibility,” the department’s public affairs office said in a statement. “We regret,” the statement said, “that the department didn’t catch the 2006 law when the case of Kennedy v. Louisiana was briefed.”... The solicitor general’s office, which represents the federal government before the Supreme Court, did not file a brief in the case, and none of the 10 briefs that were filed informed the justices of the new federal law....
Speaking to reporters on Wednesday morning, the White House press secretary, Dana Perino, said the administration “was disturbed by the New York Times report that the court’s decision might be based on a mistake.” The Justice Department is looking into what happened and what steps may now be taken, Ms. Perino said.
The Justice Department elaborated in its statement, which it issued in late afternoon. The department informed the court of the omission “shortly after learning of the law” on Tuesday, the statement said. As the department’s statement noted, only parties to a case can ask the justices to reconsider their decision. The department might ask the court for permission to provide its views if Louisiana files a rehearing petition, the statement added.
Steve Wimberly, the first assistant in the Jefferson Parish, La., district attorney’s office, which handled the case for the state before the Supreme Court, said in an interview Wednesday that while no decision had yet been made, “we are strongly considering the option of asking the justices to reconsider the case.” Mr. Wimberly added that Gov. Bobby Jindal, who denounced the court’s ruling, was involved in deciding how to proceed.
Though the mistake about military capital punishment law makes for a fascinating story, I do not think this legal particular itself would prompt the Supreme Court to reconsider its ruling. (I see that Orin Kerr writing here at Volokh largely agrees in this assessment.) However, combined with the (legally significant) negative reaction to the Kennedy decision, I cannot help but wonder if this story has some real legs.
Recall that a key linchpin of the Kennedy ruling is the majority's conclusion that there is a "national consensus" against child rape as a capital offense. But, as this NRO commentary rights highlights, the "furious public outcry after the ruling was a pretty good sign that something was amiss in the majority’s survey." indeed, this separate NRO piece makes an even more astute observation about evidence that there is not a consensus against making child rape a capital offense:
The leaders of both major parties were quick to oppose Kennedy — presumably not out of a desire to contravene society’s “standards of decency” in the middle of a presidential race. At a press conference in the wake of the holding, Barack Obama commented: “I think that the rape of a small child, six or eight years old, is a heinous crime, and if a state makes a decision that under narrow, limited, well-defined circumstances the death penalty is at least potentially applicable, that does not violate our Constitution.” So even the most liberal member of the Senate does not have a sense of decency as highly evolved as the Court’s.
I know very little about the legal and practical dynamics that surround rehearing petitions in the US Supreme Court (and I am hoping the folks at SCOTUSblog get on this issue ASAP). Apparently the SG's office is prepared to file an amicus brief in (support of?) any rehearing petitioning. Similarly, I think a number of amici who supported Louisiana originally might also support its rehearing efforts.
Of course, the big question is how many Justices need to vote for rehearing and whether any of the Supremes have a serious interesting in continuing this debate. I have a nagging feeling that the four dissenting Justices in Kennedy have little interest in rehashing all these issues, and they may know that there is little chance that any members of the majority with change course. But, if the Justices are truly open-minded on these issues (which they should be, but likely aren't), I hope they will recognize that the new relevant post-decision developments may demand humble reconsideration of a decision that many justifiably now view as especially suspect.
One (of many) brewing Heller test cases?
The New York Sun has this interesting report on what could be an interesting Heller test case:
In a sign that federal courts here in New York will defend New York City's restrictive gun regulations, a judge is allowing the city to strip a disabled Vietnam War veteran of his gun license....
The veteran who lost his gun license, Dominick DiNapoli, said the Supreme Court's decision ought to require that he gets back his gun permit. "Who needs a gun more than someone like me, who is disabled and can't physically defend his home?" Mr. DiNapoli said in an interview.
The court decision, by Judge William Pauley III of U.S. District Court in Manhattan, does not mention the Second Amendment and defers entirely to the New York City Police Department's permitting process....
In 1970, police first issued Mr. DiNapoli, then a deer hunter, a license for a shotgun or rifle. In 2002, the department revoked it, citing both a brief period during which Mr. DiNapoli was homeless and criminal charges that had been filed against him and subsequently dropped, Judge Pauley wrote in the decision. During the time Mr. DiNapoli was homeless — he was evicted from his apartment in 2001 — and failed to inform the police department of a change of address, as is required of permitted gun owners, Judge Pauley noted.
The criminal charges against Mr. DiNapoli, filed in 2000, alleged that he had sent a threatening letter to employees of the federal Department of Agriculture regarding his difficulties in obtaining food stamps. Federal prosecutors subsequently dropped the charges in 2004....
In the end, the police department had decided that the Mr. DiNapoli's actions "indicated a lack of good moral character for firearms possession," Judge Pauley wrote.
Of course, the general justification for broad restrictions on felon gun rights is that every felon lacks the "good moral character for firearms possession." Though Mr. DiNapoli apparently does not have a felony record, he seems quite comparable to the many non-violent felons who have been forever denied the ability to possess a gun because of a long-ago encouter with the criminal justice system.
It will be interesting to see if this post-Heller story focused on a sympathetic person denied access to a gun will resonnate. And I will continue to look for similar Heller test cases involving non-violent felons or others who are being denied Second Amendment rights in the days and weeks ahead.
Reflections on the (criminal justice) blawgosphere
Here are three very interesting and thought-provoking posts about the history and state of the blawgosphere from the "practical blawgosphere":
- From Simple Justice, Are Law Professors Afraid of the Practical Blawgosphere?
- From CrimLaw, A Brief History of Blogging: Is It a LawProf's World?
- from Simple Justice, Is This What They Think of Criminal Defense Lawyers?
These posts all suggest, directly or indirectly, that there is a big divide between the blogs and blogging habits of law professors and practicing lawyers. Of course, there is a huge divide between the day-to-day work and responsibilities of law professors and practicing lawyers, but I love the blawgosphere in part because it has always seemed by a terrific cyber-meeting-space for the academy and the bar (as well as the bench and law students and non-lawyers).
Indeed, I have generally believed that most (though not all) of the law professors who blog are much more interested in the day-to-day work of practicing lawyers than most of their academic colleagues. Similarly, I have generally assumed that most (though not all) of the practicing lawyers who blog are much more interested in academic perspectives and debates over broad legal ideas than most of their practicing colleagues. In other words, I generally views most law bloggers, whether profs of practitioners, as birds of a feather.
But the posts above have led me to seriously question my assumptions about the blawgosphere (though as my posts title spotlights, my focus and hands-on knowledge is only within and among criminal justice blogs). Do readers generally see relative harmony or a big divide between bloggers in the academy and in the bar?
July 2, 2008
A Reagan era irony in Senator McCain's recent judge-bashing
Reflecting more on Senator John McCain's notable crime speech yesterday (first blogged here), I realized there was an interesting irony as a result of his praise for Ronald Reagan and his critique of the federal judiciary. Let me explain.
McCain asserted that, because "President Reagan offered a different approach to criminal justice, ... over time America became a better, safer, and more just country." Later, Senator McCain said that "nowhere is the influence of a president more critical to law enforcement than in the power of judicial nominations." Then he lamented how "one badly reasoned opinion, by one overreaching judge, can undo [a conviction].... Even worse, when such opinions issue from the highest court, they set a precedent for many more injustices, and they add one more obstacle to the work of law enforcement."
Though one can debate these assertions, what seems ironic and noteworthy is that the vast majority of the most significant and controversial pro-criminal-defendant rulings have comes from the pen of the two Justices now on the Court who were appointed by President Ronald Reagan: Justice Antonin Scalia and Anthony Kennedy. Specifically, just this past Term, Justice Kennedy authored big wins for defendants in Kennedy and Boumediene, and Justice Scalia wrote broadly for defendants in Giles and Santos (and Heller).
Of course, two of the very biggest criminal defense SCOTUS wins in recent years — Blakely and Crawford — were both authored by Justice Scalia. And a large number of recent rulings striking down death sentences (from Roper to Panetti to a bunch of Texas cases) were authored by Justice Kennedy.
Given that seven of the nine current Justices were appointed by Republican presidents and that 60% of lower federal court judges are also Republican appointments, it is especially sad and telling that Senator McCain still cannot resist bashing supposedly "soft-on-crime" federal judges. Anyone working in the federal system knows that most federal judges are anything but "soft," and yet still their daily thankless work in defense of constitutional principles for criminal defendants gets attacked by the Republican presidential candidate.
Some Heller thoughts from around the blogosphere
I see these new notable new Heller posts from around the law professor blogosphere:
- At Balkinization from Sandy Levinson, Does the Constitution protect a substantive right to hunt?
- At The Volokh Conspiracy from Dale Carpenter, Don't tase Heller, Bro
- At The Faculty Lounge from Dan Filler, Heller Highwater: Second Amendment Protection And The Criminal Law
Dan's thoughtful post is a response to my recent suggestion in this post that Heller's forceful embrace of an individual "right of law-abiding, responsible citizens to use arms in defense of hearth and home" could create huge headaches for prosecutors in the day-to-day operation of the criminal justice system. Dan ends his post with this suggestion that criminal defense attorneys will not get too much mileage from Heller:
Defense lawyers may have fun with Heller for a while but I suspect that they'll soon discover little to play with, and they'll return to the bread and butter. Dramatic closings; perilous cross-examination; and of course plea bargain after plea bargain after plea bargain.
I think Dan is probably right, but I also believe that the eagerness that courts may show in limiting Heller in the criminal justice context will ultimately serve to undermine broader litigation efforts to secure gun rights through constitutional rulings.
FSR issue focused on crack retroactivity now on-line
I am pleased to report that, just in time for the start of the summer sentencing dog days, the latest issue of the Federal Sentencing Reporter focused on white-collar cases is now available here on-line. The issue is titled "Debates and Realities Surrounding Crack Retroactivity," and here is an overview of some of the contents:
- Douglas A. Berman, The Varied Challenges of Undoing Past Sentencing Injustices
- David Yellen, The Sentencing Commission Takes on Crack, Again
- Judge Gregory Presnell, United States v. Guy D. Lyne
- U.S. Sentencing Commission, “Reader-Friendly” Version of Amendments on Crack Cocaine Guideline Retroactivity
- Federal Defender Sentencing Guidelines Committee, Memorandum on Effective, Efficient and Fair Implementation of the Retroactive Amendment
- Bureau of Prisons, Letter Concerning Sentence Reduction for Crack Cocaine Offenders
- Congressional Testimony at “Cracked Justice” House Hearing
Details on other recent FSR issues:
- FSR Issue 20.1: Learning from Libby
- FSR Issue 20.2: Prisoner Reentry
- FSR Issue 20.3: White-Collar Sentencing
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Extended sentence review discussions in Sixth and Ninth Circuits
For whatever reason, Wednesdays tend to be busy days in the circuit courts, and today's sentencing action includes two lengthy opinions affirming lengthy sentences in the Sixth and Ninth Circuits. In both opinions noted below there are extended discussions of both guideline-calculation issues and reasonableness review dynamics:
- US v. Erpenbeck , No. 06-4247 (6th Cir. July 2, 2008) (available here)
- US v. Warr, No. 07-30125 (9th Cir. July 2, 2008) (available here)
Both opinions make for interesting reads, though the Warr facts and legal issues are a bit more exciting because the case involves a defendant described by the sentencing court as a "borderline psychopath pyromaniac."
Ineffective assistance (by prosecutors) in Kennedy child rape case?
Linda Greenhouse has this fascinating follow-up to the Supreme Court's ruling in the Kennedy case declaring unconstitutional state efforts to make child rape a capital crime. The article is headlined "In Court Ruling on Executions, a Factual Flaw," and here is how the article starts:
When the Supreme Court ruled last week that the death penalty for raping a child was unconstitutional, the majority noted that a child rapist could face the ultimate penalty in only six states — not in any of the 30 other states that have the death penalty, and not under the jurisdiction of the federal government either.
This inventory of jurisdictions was a central part of the court’s analysis, the foundation for Justice Anthony M. Kennedy’s conclusion in his majority opinion that capital punishment for child rape was contrary to the “evolving standards of decency” by which the court judges how the death penalty is applied.
It turns out that Justice Kennedy’s confident assertion about the absence of federal law was wrong.
A military law blog pointed out over the weekend that Congress, in fact, revised the sex crimes section of the Uniform Code of Military Justice in 2006 to add child rape to the military death penalty. The revisions were in the National Defense Authorization Act that year. President Bush signed that bill into law and then, last September, carried the changes forward by issuing Executive Order 13447, which put the provisions into the 2008 edition of the Manual for Courts-Martial.
Anyone in the federal government — or anywhere else, for that matter — who knew about these developments did not tell the court. Not one of the 10 briefs filed in the case, Kennedy v. Louisiana, mentioned it. The Office of the Solicitor General, which represents the federal government in the Supreme Court, did not even file a brief, evidently having concluded that the federal government had no stake in whether Louisiana’s death penalty for child rape was constitutional.
In addition to being very proud of the work of a fellow law blogger — in this case, "Dwight Sullivan, a colonel in the Marine Corps Reserve who now works for the Air Force as a civilian defense lawyer handling death penalty appeals" and who deserves lots of extra traffic for his post, The Supremes Dis the Military Justice System — I cannot help but enjoy the broader irony in this story.
Usually, the story is that poor lawyers by the defense team in part explains why a defendant got sentenced to death. This time, it would seem, poor lawyers by the prosecutors in part may explain why a death sentence was found unconstitutional. (Of course, I seriously doubt the outcome would have been different even if the Justices had all their facts right.)
Justice Department releases final SORNA guidelines
As effectively spotlighted by Sex Crimes and TalkLeft, the US Department of Justice released the final Sex Offender Registration and Notification ACT (SORNA) Guidelines, which are designed to assist local jurisdictions with efforts to implement the sex offender registration rules appearing in the Adam Walsh Act passed back in 2006. The full final SORNA guidelines (which run 99 pages) can be accessed here in pdf (and here electronically), and DOJ has this shorter FAQ about the guidelines.
Some related posts:
Seeking better sentencing through better technology Down Under
This article from Austrailia highlights another country that is using modern technology to try to achieve a more fair and effective sentencing system. Here are some of the details from the article:
Magistrates and judges are likely to have access to "live" sentencing statistics online when a major overhaul of the state's sentencing database is completed.
Sentencing Advisory Council chairman Prof Arie Freiberg said yesterday it was crucial that courts had ready access to current, accurate sentencing information. Prof Freiberg said an online database would enable courts to consult sentencing parameters when imposing penalties....
About 92 per cent of all criminal cases dealt with in Victoria are heard by the state's 110 magistrates. But until now, no sentencing statistics had been available to guide them on current sentencing practices. "It's really important that we get that information to them, and it can assist them in their decision-making," Prof Freiberg said.
He said the council had received very positive feedback from judges now able to refer to a wide range of snapshots already published on sentencing trends in the County and Supreme Courts.
July 1, 2008
Hey, big spender: John McCain's ambitious (and expensive?) crime-fighting agenda
The headline of this news report effective summarizes a big crime speech that Senator John McCain gave today: "McCain Talks Tough on Crime at Sheriffs' Convention." The full text of McCain's speech is available here, and it has lots and lots of interesting aspects. There some love for President Reagan's "focus on vigorous enforcement and stricter sentencing," and some hate for the Supreme Court's opinion in the Kennedy child rape decision in which, according to McCain, the Justices "substituted their judgment for that of the people of Louisiana." (Notably, while bashing the Supreme Court for this opinion, Senator McCain leaves out the fact that a Reagan appointee wrote the Kennedy opinion, and that 3 of the 5 Justices in the Kennedy majority were Republican appointees.)
Though I could say a lot about all the intriguing aspects of Senator McCain's crime speech, I find most interesting his willingness to pledge federal dollars for ambitious crime-fighting programs. Here are just a few snippets of the speech that suggest a President McCain is ready and willing to spend federal tax dollars on various crime-fighting initiatives:
To meet all of these [new crime] challenges, and others, you will need assistance, critical resources, and new technologies that often only the federal government can provide....
To protect our energy supply, air and rail transport, banking and financial services, we need to invest far more in the federal task of cyber security....
[A]s president, I will expand the Criminal Alien Program. We will require that the federal government assume more of the costs to deport and detain criminal aliens -- because this is a problem of the federal government's own making....
Ex-convicts need more than a few bucks and a bus ticket out of town. Many will need job training, a place to live, mentors, family counseling, and much more. Beyond government, there are churches and community groups all across our country that stand ready to help even more. And these groups will have the committed support of my administration.
There is a lot more to the speech than just these pledges of federal support, and I encourage everyone to read the full text of the interesting speech and provide other reactions in the comments.
Florida back in execution business
As detailed in this Reuters article, "Florida executed a death row inmate by lethal injection on Tuesday for the 1991 kidnapping, sexual battery and murder of an 11-year-old boy, marking the state's first execution since a Supreme Court ruling ended a nationwide moratorium." Here are more specifics:
Officials at the Florida State Prison near Starke pronounced Mark Dean Schwab, a 39-year-old native of Ohio, dead at 6:15 p.m. EDT after injecting him with a deadly cocktail of drugs that paralyzed his lungs and stopped his heart, a spokeswoman for Gov. Charlie Crist said.
He became the 10th person to be put to death in the United States since the U.S. Supreme Court in April rejected a legal challenge to the three-drug cocktail used in most executions over the past 30 years.
Schwab was also the first inmate executed in Florida since the botched December 2006 execution of Angel Diaz, who took an unusually long 34 minutes to die after intravenous tubes used to administer the deadly drugs were connected improperly.
Will Kennedy have any cross-over impact for non-capital cases?
A week after it was handed down, I am now re-reading the Supreme Court's work in the Kennedy child rape case to ponder whether any aspects of the majority's Eighth Amendment holding or dicta might have an impact in non-capital cases.
As regular readers know, I have always been troubled by the eagerness of the Supreme Court (and some lower courts) to find many constitutional problems with death sentences and yet few constitutional problems with extreme non-capital sentences. Disappointingly, most parts of the Kennedy ruling have a "death is very different" quality that may keep Kennedy from helping non-capital defendants. Nevertheless, I think these snippets from the Kennedy majority opinion could and should have some resonnnace in non-capital contexts (all cites/quotes omitted):
The [Eighth] Amendment proscribes all excessive punishments, as well as cruel and unusual punishments that may or may not be excessive [and its] protection against excessive or cruel and unusual punishments flows from the basic precept of justice that punishment for a crime should be graduated and proportioned to the offense. Whether this requirement has been fulfilled is determined not by the standards that prevailed when the Eighth Amendment was adopted in 1791 but by the norms that currently prevail. The Amendment draws its meaning from the evolving standards of decency that mark the progress of a maturing society. This is because the standard of extreme cruelty is not merely descriptive, but necessarily embodies a moral judgment. The standard itself remains the same, but its applicability must change as the basic mores of society change. (Kennedy slip op. at 8.)
The constitutional prohibition against excessive or cruel and unusual punishments mandates that the State’s power to punish be exercised within the limits of civilized standards. (Kennedy slip op. at 24.)
In addition, the Kennedy ruling suggests that, whenever a defendant challenges an authorized punishment under the Eighth Amendment, the judiciary's "own understanding of the Constitution and the rights it secures" must be part of the constitutional analysis. (Kennedy slip op. at 24). And, in turn, this appears to require the judiciary to consider "the fundamental, moral distinction between a 'murderer' and [and other crime that] is not like death in its severity and irrevocability." (Kennedy slip op. at 27.) Indeed, suggests the Kennedy court, as a matter of constitutional law and Eighth Amendment doctrine, even crimes that "may be devastating in their harm ... cannot be compared to murder." (Kennedy slip op. at 27.)
If read to be more than just a death penalty ruling, one might reasonably assert that Kennedy's holding or dicta would preclude a jurisdiction from ever punishing a non-murder crime with the same terms it uses to punishes its worst murders. This, in turn, would mean that Kennedy could raise serious constitutional questions for all sorts of non-homicide LWOP sentences and extremely long prison terms imposed for relatively minor offenses. Sadly, however, I do not expect many (any?) lower courts to extend the logic of the Kennedy holding and dicta to non-capital settings.
SCOTUS gets first look at CVRA
As detailed in this great SCOTUSblog post, some of the fascinating issues that surround the federal Crime Victims' Rights Act (CVRA) have now come before the Supreme Court in the form of an application for a stay. Here is the start of the SCOTUSblog coverage:
In the first attempt to get the Supreme Court to clarify the rights of crime victims under a 2004 federal law, lawyers for 12 victims of an explosion three years ago at an oil refinery in Texas have asked the Supreme Court to delay a federal judge’s action on a plea agreement that would settle federal criminal charges against a large oil company. The victims contend that the plea deal is too lenient, and that it was worked out without any input from the victims — a claimed violation of the Crime Victims’ Rights Act.
At this stage, the victims are asking the Court to block a Fifth Circuit Court ruling that limits their right to challenge denials of rights under that Act; their lawyers are preparing an appeal to the Supreme Court on that point, and want a delay until that is decided. The application for a stay (Dean, et al., v. U.S. District Court, 08A3) can be downloaded here. BP Products North America Inc. filed an opposition to the stay request, arguing that the 2004 law does not allow for stays.
If a stay is not issued, the victims’ lawyers argued, the plea deal could be ratified by a federal judge, forever scuttling their rights to have taken part in discussions of what such a bargain should include, before it takes effect.
As I have highlighted in a number of prior posts, the CVRA is a really interesting (and really unclear) bit of federal legislation. The nature of the claim and the nature of the case here leave me entirely unsure what the Supreme Court will do, though I am sure it will have to confront a number of CVRA issues in the years ahead.
Some related posts:
- SCJC symposium on "The Victim in Criminal Justice"
- FSR Issue 19.1: Victims and Sentencing I: Victim Impact Evidence, the Crime Victims' Rights Act and Kenna
- FSR Issue 19.2: Victims and Sentencing II: Beyond the CVRA
UPDATE: As detailed here at SCOTUSblog, the Supreme Court turned down the stay request of victims in this case. It would seem that the Justices do not entirely agree with Senator John McCain's recent assertion in his crime speech that "[i]n all of criminal justice policy, we must put the interests of law-abiding citizens first -- and above all the rights of victims." No wonder Senator McCain has taken to judge-bashing.
Will any Prez candidate promise to get us out of a failed war ... on drugs?
Though many remain eager to use gun debates as a political talking point in the election season, I would like the talk to be about a failed war that has lasted far too long, has cost lots of money and time, and seems to be of little efficacy. Of course, the war I am talking about is the never-ending "war on drugs." As detailed in this new Science Daily entry, headlined "United States Has Highest Level Of Illegal Cocaine And Cannabis Use," the so-called "war on drugs" has failed to reduce illegal drug use in the United States:
A survey of 17 countries has found that despite its punitive drug policies the United States has the highest levels of illegal cocaine and cannabis use. The study, by Louisa Degenhardt (University of New South Wales, Sydney, Australia) and colleagues, is based on the World Health Organization's Composite International Diagnostic Interview (CIDI).
The full article can be accessed at this link.
Of course, even though the so-called "war on drugs" apparently has not be effective at driving down illegal drug use, it does appear to have effectively increased our prison populations and the amount of taxpayer dollars spent on a wide array of criminal justice institutions in federal and systems. Too bad that a lot of this money is taken away from education and other government services intended to help, rather than hurt, citizens in need.
As regular readers know, Senator Jim Webb is paying attention to these issues and understands that a new approach is needed. Do any other national politicians? Will anyone besides Senator Webb have the courage to ask hard questions about what has been won and lost in the war on drugs?
Some recent related posts:
- Aren't extreme sentences and mass incarceration a "tired philosophy that trusts in government more than people"?
- New Sentencing Project report on the "war on drugs"
Reviewing all the (Tenth) Circuit sentencing action during SCOTUS distractions
While I was focused on the Supreme Court's work last week, there were a lot of notable circuit rulings that I did not have a chance to cover. Helpfully, a friendly reader provided me with this amazing summary of the Tenth Circuit's sentencing opinions from last week:
US v. Huckins: The Circuit affirmed a downward variance in a possession of child pornography case. From an advisory Guideline range of 78-97 months, the district court imposed an 18 month sentence. In affirming, the Circuit explained: "But where, as here, the court decides to vary from the Guidelines after a careful, reasoned, and reasonable consideration of the § 3553(a) factors, we cannot say the court abuses its discretion." The concurrence stresses that the government did "literally, nothing" to argue that the sentence was unreasonable in a post-Gall setting.
US v. Scott: The Circuit affirmed several sentencing enhancements and held that an upward variance from a advisory Guideline of 70-87 months to sentence of 120 months in Mann Act case was substantively reasonable. The district court relied "upon a host of facts" to impose the upward variance. The Circuit, relying on Gall, gave due deference to the district court that the sentence "struck the proper balance" of 3553(a).
US v. Halley: The defendant argued his sentence was unreasonable because his more culpable co-conspirator received an 18 month sentence, while he received a 262 month sentence. The significantly higher sentence was due to his going to trial (the co-conspirator received a and being career offender. (If he was not career offender, his advisory Guideline range would have been 46-57 months). In denying the defendant's variance request, "[t]he court explained that although the '[more culpable co-conspirator] situation is a little bit bothersome,' she did not have the same criminal history as Mr. Haley, she was not a career offender, and she received a downward departure for accepting responsibility." The Circuit rejected defendant's argument that this vast disparity with a more culpable co-conspirator, should result in his sentence not being more than 192 months, explaining "We find [the disparity] insufficient to upset the district court's exercise of discretion."
US v. Cerno: The Circuit held: "We agree with Cerno that the district court committed procedural error by refusing, as a matter of law, to entertain his argument that relatively little force was used to perpetrate the assaults. We reverse on this basis. . . . . . . Sentencing law simply does not foreclose a court's individual consideration of the specific nature and circumstances of the offense conduct at issue, including whether the offense committed was more or less heinous than offenses committed by other defendants convicted under the same statute. Indeed, the sentencing statute mandates that a court consider the 'nature and circumstances of the offense' in fashioning a sentence 'sufficient, but not greater than necessary' to accomplish the sentencing goals outlined in the sentencing statute."
US v. A.B.: The Circuit rejects the defendant's procedural reasonableness argument concerning the interaction between a govt. substantial assistance downward departure motion and defendant's additional downward variance motion. The defendant "argues that, even after departing downward from the Guidelines range on substantial assistance grounds to a point below the mandatory minimum sentence, the district court was obliged to consider his § 3553(a) factors in assessing the appropriateness of a downward variance [from that point]. . . . [A]lternatively [defendant] contends that the district court should have first considered the § 3553(a) factors in determining whether to vary downward from the advisory Guidelines range, and then granted a substantial assistance downward departure." The Circuit found no error occurred.
US v. Tiger: The Circuit held that U.S.S.G. § 4B1.2 is virtually identical to ACCA statute that was at issue in Begay. Upon GVR, Circuit interpretation of § 4B1.2 requires reversal.
Pondering a response to protection of juve trial rights
As detailed in this post, a few weeks ago the Kansas Supreme Court held In the matter of LM, No. 96, 176 (Kan. June 20, 2008) (available here), that "juveniles have a right to a jury trial under the Sixth and Fourteenth Amendments to the federal Constitution and the Kansas Constitution." This effective local article, headlined "No rush expected on ruling on juvenile trials," highlights that the Kansas legislature is not quite sure it should respond:
“I think there is going to have to be some digestion of what the decision means in the real world,” said Senate Majority Leader Derek Schmidt. “It’s going to set up several lines of discussion, and it’s going to take some time to see which gains momentum.”
Of course not everyone agrees. Sen. Phil Journey, who called the June 20 ruling predictable, said legislators must act sooner than later. “There is no way we can wait. The Legislature is going to have to deal with it forthwith. It doesn’t rise to the level of calling a special session, but it’s pretty close,” said the Haysville Republican.
June 30, 2008
New report assails California's death penalty system
These headlines from the major California papers highlight the heart of a major report documenting flaws with California's death penalty system.
- From the Los Angeles Times, California's death penalty process is 'dysfunctional,' panel finds
- From the Sacremento Bee, Death penalty system 'close to collapse,' state panel concludes
- From the San Jose Mercury News, Report: State should abolish death penalty or make drastic changes
As one who has seen many of these types of reports, I am not surprised to hear about all the critiques of the capital punishment status quo, and I will not be surprised if this report does little or nothing to change that status quo.
Georgia Supreme Court examines banishment punishment
As detailed in this AP article, headlined "Ga. court upholds partial banishment for offenders," the Georgia Supreme Court in this decision today discusses at some length the constitutionality under state precedents of an offender subject to this sentence:
“The Defendant is banished from every county in the State of Georgia except Toombs County. If he is seen in the State of Georgia, other than in Toombs County, during the term of this Sentence it would be a violation of his parole and probation.”
UPDATE: After a review of the extreme facts and relatively measured holding in this case, I find the Georgia high court ruling more reasonable than it may at first sound.
Great SCOTUSblog review of criminal side of SCOTUS docket
Writing at SCOTUSblog, Kristina Moore has this great post reviewing the Supreme Court's criminal justice work in the term just finished. Here is how it starts:
While the Supreme Court’s opinions this Term produced sweeping rulings on the death penalty and on the rights of enemy combatants, the criminal law docket in OT07 was all about the details. Of the 24 cases on criminal law, 12 involved sentencing guidelines or felony definitions, and seven cases death with strictly procedural issues.
Just over half of the decisions went in favor of criminal rights. Big wins for the accused included the ability of federal judges to depart from the federal sentencing guidelines in crack cocaine cases (Kimbrough and Gall), and of state courts to retroactively apply Supreme Court decisions to criminals seeking post-conviction relief even where federal judges cannot (Danforth). The Court gave wins to both prosecutors and defense attorneys. While the Court ruled Kentucky’s protocol for lethal injections constitutionally sound (Baze), it barred states from applying the death penalty to convicted child rapists (Kennedy).
Go read the whole thing (as well as my related recent post below):
Prosecutorial headaches after Heller
Before the ink was dry on the Supreme Court's landmark Second Amendment ruling in Heller, prognosticators, pundits and politicians were predicting what types of gun control laws and regulations were now constitutionally suspect. But I keep thinking about how the Court's forceful embrace of an individual "right of law-abiding, responsible citizens to use arms in defense of hearth and home" could create huge headaches for federal and state prosecutors in the day-to-day operation of the criminal justice system.
In my view, a serious commitment to the concepts and principles developed by the Court in Heller could impact many aspects of the day-to-day operation of modern criminal justice systems. As I have stressed before, felon-in-possession prohibitions and severe federal sentences might be subject to new attacks in the wake of Heller. But, beyond these broad issues, I am starting to wonder (and worry?) if many criminal procedure doctrines need to be reexamined after Heller. As the Second Amendment dust begins to settle, prosecutors may get headaches if (and when?) defense attorneys load up with the new litigation ammunition Heller presents.
Consider, for example, traditional search and seizure law. Police frequently make allegations about firearms to obtain or broaden search warrants for a home. And firearms will often be seized by police when discovered during the investigating of other crimes. But if firearm possession in the hearth and home is constitutionally protected, these common search/seizure techniques may infringe or unduly burden the exercise of Second Amendment rights.
Consider also how Heller could impact plea practices, especially if broad felon-in-possession laws are upheld. As plea deals are put together, prosecutors and defense attorneys should ensure a defendant knows he will be losing Second Amendment rights permanently by pleading guilty to a felony. In standard plea colloquies, which must ensure an understanding of all rights being waived, perhaps should inform defendants that a felon conviction will mean the end of all gun rights.
Turning to trials, will defendants accused of possessing firearms in connection with drug dealing now be able to demand that the jury be given a Second Amendment instruction? What is to become of what might be called "mixed motive" cases in which an admitted petty street drug dealer who says he kept guns in his home to defend his hearth and home from cranky customers who come to his home looking for fix.
I could go on and on, but here is the basic point: clever defense attorneys can (and will?) use the Court's broad opinion in Heller to raise all sort of new questions about all sorts of seemingly settled criminal justice doctrines involving firearms. Though the courts may not often (or ever?) answer these questions in ways favorable to defendants, prosecutors are likely to find Heller to be a big headache until there are conclusive rulings on all these diverse fronts.
Some related posts:
- More thoughts about the scope of Second Amendment rights
- Get ready for a Second Amendment rumble, defense attorneys
A Sunsteinian death penalty puzzle
Professors Cass Sunstein and Justin Wolfers have this notable commentary in the Washington Post, headlined "A Death Penalty Puzzle: The Murky Evidence for and Against Deterrence." Here is how it starts and ends:
Although the Supreme Court banned capital punishment for child rape last week, the justices have made it clear that for homicide, states may inflict the ultimate penalty. Last month, capital punishment resumed after a seven-month moratorium. Rapid scheduling of executions followed the Supreme Court's ruling in Baze v. Rees, reaffirming the constitutionality of the death penalty in general and lethal injection in particular.
To support their competing conclusions on the legal issue, different members of the court invoked work by each of us on the deterrent effects of the death penalty. Unfortunately, they misread the evidence....
In short, the best reading of the accumulated data is that they do not establish a deterrent effect of the death penalty.
Why is the Supreme Court debating deterrence? A prominent line of reasoning, endorsed by several justices, holds that if capital punishment fails to deter crime, it serves no useful purpose and hence is cruel and unusual, violating the Eighth Amendment. This reasoning tracks public debate as well. While some favor the death penalty on retributive grounds, many others (including President Bush) argue that the only sound reason for capital punishment is to deter murder.
We concur with Scalia that if a strong deterrent effect could be demonstrated, a plausible argument could be made on behalf of executions. But what if the evidence is inconclusive?
We are not sure how to answer that question. But as executions resume, the debates over the death penalty should not be distorted by a misunderstanding of what the evidence actually shows.
Some world-wide perspectives on sentencing
A few headlines from papers in distant lands provides a glipse into sentencing debate going on around the world:
- From Australia, Oppn unveils new mandatory sentencing policy
June 29, 2008
Extended examination of ugliness of acquitted conduct enhancement
The Washington Times has this lengthy piece examining the use of acquitted conduct to enhance federal sentences in a high-profile DC case. The article is headlined, "A $600 drug deal, 40 years in prison: Acquitted of murder, convicted of drug deal, Antwuan Ball faces a decades-long sentence," and here are snippets:
Jurors acquitted Ball in November 2007 on every count of a massive racketeering, drug conspiracy and murder indictment except a $600, half-ounce, hand-to-hand crack-cocaine deal in Southeast Washington seven years ago. Perhaps thinking his freedom was at hand, Ball cried when the verdicts were read. Indeed, under federal guidelines, he could expect to be released within a few years.
However, federal prosecutors are asking U.S. District Judge Richard W. Roberts to send Ball to prison for 40 years, basing their request partly on charges that were never filed or conduct the jury either rejected outright or was never asked to consider.
Known as acquitted and uncharged conduct sentencing, the practice is raising a sharp question among legal scholars: Should federal judges dole out tougher sentences based on accusations that jurors rejected or never heard during trial?
Accompanying the main story is this side-bar piece headlined "'Relevant conduct' can add to sentences," as well as this remarkable letter from a juror in the Antwuan Ball case sent to the judge due to sentence Mr. Ball. Here is an excerpt from the juror letter that merits a full read:
As you remember, Judge Roberts, we spent 8 months listening to the evidence, filling countless court-supplied notebooks, making summaries of those notes, and even creating card catalogues to keep track of all the witnesses and their statements. We deliberated for over 2 months, 4 days a week, 8 hours a day. We went over everything in detail. If any of our fellow jurors had a doubt, a question, an idea, or just wanted something repeated, we all stopped and made time. Conspiracy? A crew? With the evidence the prosecutor presented, not one among us could see it. Racketeering? We dismissed that even more quickly. No conspiracy shown but more importantly, where was the money? No big bank accounts. Mostly old cars. Small apartments or living with relatives.
It seems to me a tragedy that one is asked to serve on a jury, serves, but then finds their work may not be given the credit it deserves. We, the jury, all took our charge seriously. We virtually gave up our private lives to devote our time to the cause of justice, and it is a very noble cause as you know, sir. We looked across the table at one another in respect and in sympathy. We listened, we thought, we argued, we got mad and left the room, we broke, we rested that charge until tomorrow, we went on. Eventually, through every hour-long tape of a single drug sale, hundreds of pages of transcripts, ballistics evidence, and photos, we delivered to you our verdicts.
What does it say to our contribution as jurors when we see our verdicts, in my personal view, not given their proper weight. It appears to me that these defendants are being sentenced not on the charges for which they have been found guilty but on the charges for which the District Attorney’s office would have liked them to have been found guilty. Had they shown us hard evidence, that might have been the outcome, but that was not the case.
Some related posts on acquitted conduct sentencing enhancements:
Doesn't Kennedy suggest life in prison for failing to register is unconstitutional?
This new Atlanta Journal-Constitution article highlights an appeal of an extreme state sentence that is another reflection of the modern sex offender panic. The piece is entitled "Fairness of law to be judged -- Mandatory sentences: Georgia's Supreme Court will consider proportion." Here are excerpts:
The judge had only one option when he sentenced Cedric Bradshaw: life in prison. Bradshaw had not committed murder, rape or armed robbery. His offense was failing to properly register as a convicted sex offender for a second time — even though he had repeatedly tried to follow the law....
On Monday, the state's highest court will consider whether the law is unconstitutional on grounds it is cruel and unusual punishment.
No other state calls for a life sentence for failing to register as a sex offender the second time, and even rape and armed robbery convictions in Georgia do not carry mandatory life terms, said Bradshaw's lawyer, Robert L. Persse, the circuit public defender in Statesboro. "The punishment for a second violation is grossly disproportionate to the offense," Persse said. "That is particularly true when this is essentially a paperwork offense not accompanied by aggravating circumstances like violence, sexual deviance or being out in a schoolyard hunting for children."
The Bulloch DA's office is urging the state Supreme Court to uphold the life term. "The courts look at the Legislature's intent in determining the best evidence for the appropriateness of the sentence," Assistant District Attorney W. Scott Brannen said. "When they increase it [to a life term], that too is evidence of the intent and the will of the people."...
Brannen, the prosecutor, said the law is on the books and "it's not my place or the court's place to decide what we like and don't like and what we want to enforce or not enforce." Bradshaw, Brannen said, broke the law by failing to give a valid address within the 72-hour reporting deadline. "There are no exceptions in the law," he said.
I am not sure what I find more remarkable: the fact that Georgia punishes this regulatory offense with a mandatory life term, or the fact that in the wake of the Supreme Court's Kennedy ruling the defendant here could have sexually molested and beaten a dozen children without facing a harsher sentence.
As regular readers know, I have long been troubled that the U.S. Supreme Court's eagerness to hyper-regulate the reach of the death penalty through the Eighth Amendment has not extended to regulating extreme prison terms for relatively minor crimes. The Georgia high court has previously shown the courage and wisdom to do something about a seemingly crazy prison sentence, and this would seem to be another case calling out for some remedy.
Further, as my post heading suggests, I think the recent Kennedy ruling from the Supreme Court provides some significant support for Bradshaw's constitutional challenge. If life in prison is the harshest permissible sentence for the worst child rape, can the proportionality principle in the Eighth Amendment permit a regulatory offense to be subject to the same punishment?
Tangled up in cites
Over at Race to the Bottom, Jay Brown has this very kind and cool post, headlined "Law Blogs v. Rockers: CItations in Court Opinions." Riffing off this list from the New York Times, which details court citation counts from renown rock-n-rollers, the post puts me in terrific rock-poet company.
Early one mornin' the sun was shinin', I was surfin' the webWond'ring if courts had changed at all, if their cites were still dead--Some folks they said all the posts together, sure was gonna be roughThey never did like cyber-scholarship, using new tech wasn't snooty enough--And I kept bloggin' all the sentencing issues, cases fallin' in my sightsKeeping up with the Justices, lord knows I've not been always right,Tangled up in cites.
Defense lawyers win: initial reflections on the SCOTUS term that was
How Appealing collects here links to a lot of Supreme Court end-of-term discussions. Because the Term truly was a mixed bag, it defies ready summary (though Linda Greenhouse rightly spotlights that Justice Kennedy remained a swing vote in the biggest 5-4 cases). Reflecting on the major criminal justice rulings, I think it is fair to saw that defense lawyers were the biggest winners.
Though I have not done a systematic review, criminal defendants generally seem to have faired quite well with important victories in Gall and Kimbrough and Danforth and Boumediene and Begay and Kennedy and Giles. But, defendants took hits in cases big and small with loses in Medellin and Baze and Rodriquez and Edwards and Irizarry. However, even when criminal defendants lost, there were victories to be found for criminal defense lawyers.
Edwards, limiting the reach of the right of self-representation, is the most obvious example of defense lawyers winning when a criminal defendant loses. But the same might also be said about Baze, which has a holding and dicta that can and has still energized capital defense lawyers to be more aggressive with "as applied" challenges to execution protocols. And even big defense wins like Gall and Kimbrough and Danforth and Boumediene may end up meaning a lot more and be much more significant on a day-to-day basis for defense lawyers than for defendants.
And, certainly not to be overlooked, the very biggest case of the Term, the Heller case recognizing an individual enforceable Second Amendment right, should give defense lawyers lots to work with and work on (even though I doubt too many defendants will ultimately win with Heller claims).