July 12, 2008
The broad reach of sex offender residency restrictions
This article from the Atlanta Journal-Constitution, headlined "Law would evict female 'offender' for teen sex," spotlights the broad reach of sex offender residency restrictions:
Wendy Whitaker's name may be on Georgia's sex offender registry, but her offense suggests she is no predator. At age 17, while a high school sophomore, Whitaker had oral sex with a 15-year-old male classmate. In 1997, she pleaded guilty to sodomy and got five years' probation.
Whitaker, 28, has already moved twice because of the sex offender law's strict residency restrictions that say an offender cannot live within 1,000 feet of places where children congregate. But Whitaker was recently told by her sheriff she has to move again because her home is within 1,000 feet of a church....
Whitaker and her husband, Michael, purchased their home in Harlem in January 2006, but her name was not put on the deed until 2007.... This week, Columbia County Sheriff Clay Whittle, after finding Whitaker's name was placed on the deed in 2007, ordered her to move within 48 hours. Whitaker said Friday she has had ownership rights to the home, even if her name was not on the deed. "We've been married eight years, and everything we have we have together," she said....
Whitaker's lawyer, Sarah Geraghty, said the state should let the matter rest until the federal suit is over. "Wendy Whitaker is not now and has never been a threat to anyone," she said. "The state of Georgia has better things to do than to evict a woman from her lawfully purchased home because she had sex as a teenager."
Augusta lawyer David Hudson, who represents Whittle, said the sheriff wants direction from the courts. If Cooper denies Whitaker's request, the sheriff "will enforce the law." As for Whitaker's case, Hudson added, "My personal opinion is it seems to be costing the state of Georgia a lot of time and effort because of a law that reaches out to place these onerous burdens on offenders who are not predators."
Senator Obama endorses death penalty for Osama Bin Laden
The CNN political ticker has this new report on the death penalty becoming a point of conversation on the campaign trail:
Barack Obama again said Friday he favors the death penalty for Osama bin Laden should the 9/11 mastermind be captured. In an interview with CNN's Fareed Zakaria, the presumptive Democratic presidential nominee said bin Laden's actions have justified capital punishment. "If he was captured alive, then we would make a decision to bring the full weight of not only U.S. justice, but world justice down on him," Obama said during the interview, the entirety of which is set to air Sunday at 1 p.m. ET.
"I am not a cheerleader for the death penalty — I think it has to be reserved for only the most heinous crimes," Obama also said. "But I certainly think plotting and engineering the death of 3,000 Americans justifies such an approach."
You know we live in tough sentencing times when even an ailing elderly nun cannot get a sentencing break. This local Nebraska story provides all the details:
An Omaha nun who admitted stealing money from the local archdiocese has been sentenced to prison. Sister Barbara Markey and her supporters had expected her to get probation after pleading guilty to stealing more than $250,000. Instead, the judge gave her a three-to-five-year prison sentence, saying probation would have promoted disrespect for the law.
“I’m shocked and disappointed,” said defense attorney Bill Gallup. “If ever a person deserved to be put on probation, it was this nun.”....
Markey, 73, had taken the money to fund vacations, homes and a gambling addiction. She ran the archdiocese’s Family Life office for more than 25 years but was dismissed after money was discovered missing from the Focus Marriage program....
Markey will have to begin serving her sentence immediately. The judge rejected a request to give her a few days to get her affairs in order. “This is an old woman in the fading twilight of her life,” said Gallup. “She's in bad health, has a broken shoulder, and (the judge) put her in jail. You put people in jail who are a danger to the community. She’s not and doesn't need to be rehabilitated.”
Under current sentencing guidelines, Markey won’t be eligible for parole until she’s served at least 18 months.
July 11, 2008
Might the ACLU be a strong supporter of all persons' gun rights?
I am intrigued and encouraged to see this story from the Las Vegas Sun about a local chapter of the ACLU seeing the light on Second Amendment rights. Here are excerpts from the story
Everyone loves guns in Nevada. Ducks Unlimited, the National Rifle Association, Republicans, the American Civil Liberties Union, the ... Wait. The ACLU? The Nevada ACLU has declared its support for an individual’s right to bear arms, apparently making it the first state affiliate in the nation to buck the national organization’s position on the Second Amendment.
The state board of directors reached the decision this month after the U.S. Supreme Court ruled that the Second Amendment protects the rights of individuals to own handguns. “The Nevada ACLU respects the individual’s right to bear arms subject to constitutionally permissible regulations,” a statement on the organization’s Web site said.
“The ACLU of Nevada will defend this right as it defends other constitutional rights.” “This was the consensus,” said Allen Lichtenstein, general counsel for ACLU of Nevada. “There really wasn’t a lot of dissent.” ...
Gary Peck, executive director of the ACLU of Nevada, said the decision was not political, nor a slap at the national organization. He said the ACLU of Nevada often defends both conservative and liberal groups when, in its view, a constitutional right is being violated. “This was a legal, constitutional decision for us,” he said. “Right now, it’s an issue percolating in the ACLU universe. It should be no surprise that an issue that has sparked a lot of issues and debate outside the ACLU has sparked debate inside the ACLU.”...
Peck said he anticipates Nevadans will come to his group to protect their gun rights. “I have no doubt people will be making inquiries on their rights,” he said. “I have no doubt we’ll be stepping to the plate on Second Amendment rights, if they come under assault by governments. In this state, of course, I don’t see any big rush by lawmakers.”
I sincerely hope that the ACLU will be actively "stepping to the plate" on behalf of felons looking to have Second Amendment rights restored long after they have paid their debt to society and on behalf of other less politically privileged individuals who often see their rights watered down for political expediency.
As I have noted in many prior posts, in the Second Amendment arena, even vocal pro-gun advocates often seek motivated only to protect rights for people they like, not for those they don't. The ACLU has a long and distinguished history of taking principled (and unpopular) positions in support of constitutional rights for everyone, and I hope that the ACLU of Nevada continues this in the context of the Second Amendment. If they do, perhaps candidate of all political parties might again claim with pride that they are card-carrying members of the ACLU.
Some related posts (written both pre- and post-Heller):
Wash Post urges stop to "warehousing nonviolent offenders"
The Washington Post has this editorial today, headlined "Too Many Prisoners: States should stop warehousing nonviolent offenders." Here is how it starts:
Two reports by the Justice Department's Bureau of Justice Statistics show that the rate of growth in the prison and jail populations of the United States has slowed slightly but that the country still has the dubious distinction of being the largest jailer in the world. As of June 30, 2007, the country held roughly 2.3 million people behind bars, either in local or state jails or in federal prisons.
The cost of housing and caring for inmates has been astronomical, an estimated $55 billion annual expense for taxpayers, according to the Pew Center on the States. The bloated number of inmates has been particularly painful for states, some of which have been forced to cut spending for higher education to fund corrections programs. As a result, California is considering an overhaul of its prison policies, as are Kentucky, Mississippi, Rhode Island and South Carolina.
This fiscal crisis should be a wake-up call for all states. Tough sentences for murder, rape and the like are unquestionably necessary and contributed to a drop in such crimes over the past two decades. But prisons should be focused on holding the most dangerous criminals rather than on warehousing nonviolent, first-time offenders.
Regular readers know I have done hundreds of posts on these topics. Here are just a few recent ones for those who want some background support for the Post's ideas:
- Hoping for a presidential town hall on crime and punishment
- Recalling the human realities of mass incarceration
- "Why Are So Many Americans in Prison?"
- It's the prison economy, stupid
You be the judge: what sentence should "Spam King" get?
This story, headlined "'Spam King' to be sentenced: Two-day hearing starts Friday for man who sent 90 million e-mails," provides the details on an interesting federal sentencing in Seattle. Here are the basics:
The lineup of people to testify in the sentencing of the 28-year-old so-called King of Spam is so long that it will require an unusual two-day hearing beginning Friday in federal court. Robert Alan Soloway, only the second person to be convicted of criminal spamming under the 2004 "Can-Spam" law, pleaded guilty in March to single counts of mail and e-mail fraud, and to tax evasion....
In the government's sentencing memorandum filed Monday, Soloway is said to stand out "worldwide for the volume and markedly malicious nature of his criminal spamming activity; the fraudulent 'spam promotion' sales scheme associated with it; and for brazen and even boastful claims that he is above the law and anyone -- even federal judges -- who would dare attempt to seek his compliance with it."
U.S. District Judge Marsha Pechman is expected to sentence Soloway following the conclusion of testimony slated for Monday. The charges carry a maximum sentence of 20 years in prison and more than $500,000 in fines. Prosecutors Kathryn Warma and Richard Cohen, both assistant U.S. attorneys for Western Washington, have asked for nine years in prison and a stiff fine in the $400,000 to $1 million range.
Soloway's attorney, Seattle lawyer Richard Troberman, responded with a recommendation of two years in prison at the Federal Prison Camp in Sheridan, Ore., and a less severe fine under $100,000. Troberman argues that the government's recommendation is disproportionate to the crime and wants Pechman to consider that his client suffers from behavior-altering conditions -- Tourette's syndrome, attention-deficit disorder and "oppositional defiant disorder" -- for which he takes medication.
Federal prosecutors sought the two-day hearing to provide experts, witnesses and victims from around the nation and overseas to explain the technologies and evidence schemes in light of the 2004 law, and demonstrate how victims were affected between 2003 and 2007.
What a great chance, dear readers, to provide (creative?) advice to a federal judge as she considers how to craft a sentence under 3553(a)'s diverse mandates. Please suggest via the comments what kind of sentencing term you think fitting in this case (and you get extra Berman brownie points if part of the sentencing suggestion includes sanctions beyond imprisonment).
A cultural defense seeking to mitigate child porn sentence
As detailed in this post last month, the upcoming sentencing of ex-diplomat Gons Gutierrez Nachman on federal child porn charges has already generated controversy when the 42-year-old Nachman requested to get married before his sentencing to his 21-year-old Brazilian fiancee in the same federal courtroom where he admitted having sex with three underage girls while posted overseas. Now as detailed in this AP article, headlined "Ex-diplomat: Sex with teens OK in foreign cultures," the Nachman defense team has another notable approach to sentencing mitigation in this case:
An ex-diplomat convicted of having sex with teenage girls in the Congo and Brazil and taping the encounters is asking a judge for leniency, claiming that cultural differences in those countries make sex with girls more acceptable....
The judge has agreed to delay Nachman's sentencing until Aug. 22 so that he can be examined by noted forensic psychologist Stanton Samenow. Defense attorney Stephen Stine said in court papers that a psychological examination might show that cultural differences led Nachman to believe that sexual contact with teenage girls was acceptable, and that should have an impact on what kind of sentence he receives.
Prosecutors rejected the notion that Nachman's victims somehow deserve less protection because they were not born or raised in America. "Children in the Democratic Republic of the Congo and Brazil have the same inherent value as children in the United States," prosecutor Ron Walutes wrote in court papers. Prosecutors are asking for a 20-year prison term, the maximum he could receive under the law and much higher than the term of nine to 11 years called for under federal sentencing guidelines.
In a letter Nachman wrote from jail to the director of the Foreign Service pleading with him to intervene and get the charges dropped, Nachman explained the cultural differences as he sees them. "In the Congo, women develop quickly, both physically and emotionally, due to the substantial responsibility society places on them from early childhood," Nachman wrote. "In Kinshasa, the vast majority of teenagers are sexually active with men that are substantially older.... Their main concern is marrying young girls to men with financial stability, a concern dating thousands of years and cutting across cultural lines."
The condemneds' last words from two Thursday executions
Both Texas and Virginia carried out lethal injection executions last night, and the last words from the condemned were notable different. According to this report from the Texas execution, Carlton Turner was apologetic as the state killed him:
"I know I was wrong," Turner, apologizing several times, told his slain mother's brother who watched through a window as the punishment was carried out. "I accept responsibility as a man. I take this penalty as a man."
In contrast, according to this report from the Virginia execution, Kent Jermaine Jackson was defiant as the state killed him:
Kent Jermaine Jackson was escorted into a white room in the Greensville Correctional Center just before 9 p.m. Thursday and strapped to a gurney. Then he uttered his last words: "You all can't kill me, I'm the king. Remember me like you remember Jesus. I'll be back."
July 10, 2008
Potent pieces on prison nation from the Boston Review
A helpful reader pointed me to the latest issue of the Boston Review, which has a series of notable articles under the heading, "After Prison: A special issue on incarcerated America." Here are the chief pieces (with quotes from the Boston Review's website):
Reentry: Reversing mass imprisonment by Bruce Western: "To be young, black, and unschooled today is to risk a felony conviction, prison time, and a life of second-class citizenship. In this sense, the prison boom has produced mass incarceration—a level of imprisonment so vast and concentrated that it forges the collective experience of an entire social group."
Guarded Hope: Learning from the prison boom by Robert Perkinson: "If racially skewed prison warehousing represents the latest incarnation of American racism, then political mobilization and social transformation on the scale of the civil rights movement may be necessary to dislodge it."
No Further Harm: What we owe to incarcerated fathers by Mary F. Katzenstein and Mary L. Shanley: "The recognition and encouragement of fatherhood behind bars is a vital step in maintaining and fostering the interrelated — indeed, inseparable — commitments of both intimate and civic life."
Florida Supreme Court says sex offenders on probation can have sexually explicit material
This Miami Herald article, provocatively headlined "Florida high court: Sex offenders can have porn," reports on this notable (and lengthy) ruling today from the Florida Supreme Court. Here are the details from the newspaper report:
The Florida Supreme Court on Thursday ruled that sex offenders on probation can possess pornography so long as it does not relate to the offender's "particular deviant behavior pattern." The 5-2 decision overturns a 2006 Third District Court of Appeal ruling on a Miami case in which that court said offenders cannot possess any sexually explicit material.
In the Miami case at issue, Donald Kasischke pleaded guilty in 2001 to three counts each of lewd or lascivious battery and exhibition on a 15-year-old boy. He was sentenced to a year in prison followed by two years of community control and eight years of probation. A search of Kasischke's home after his release turned up pornographic photos and a videotape. He was hauled back to prison, which the Third DCA ruled was appropriate.
But the Supreme Court justices read the wording of the law, which included the phrase about relevance to an offender's deviant behavior pattern, and they decided Kasischke should not have been reincarcerated.
So, in Florida even sex offenders can have their porn, but even after Heller there are doubts about any felon ever being able to have a gun. I wonder if there needs to be a special rule about gun porn for deviant felons.
Firearm sentence enhancements, the nexus notion, and chilling effects
Eugene Volokh with this new post continues to do a strong job criticizing lower courts for sloppy and unsatisfactory reasoning when rejecting post-Heller Second Amendment claims by criminal defendants. But in his latest post, titled "The Second Amendment and Sentence Enhancements for Firearms Use or Carrying in Connection With Crimes," I fear he is a bit too quick to embrace state jurisprudence that upholds gun sentence enhancements based merely on a gun having a purported "nexus" to a separate crime. After quoting a recent Washington state ruling explaining the nexus idea, Eugene has this comment:
It seems to me that the Washington Supreme Court's rule — requiring some connection between the possession and the crime, to distinguish unprotected use of a gun in crime (even if the gun isn't fired or brandished) from protected possession of a gun even when a crime is in progress — is a sensible way of reading the Second Amendment as well; and as best I can tell federal law would be consistent with such a rule, because it already includes this sort of "nexus" requirement.
The problem I have with this idea is that, if one really believes in a true right to "keep and bear arms," why should any keeping of a gun be deemed an "unprotected use" leading to an enhanced sentence unless and until the gun is fired or brandished or otherwise actively and directly used as part of a crime?
Consider First Amendment analogies. Suppose a tax protester gives a big speech about how the federal government wastes tax dollars before destroying a mailbox as part of his protest: though the protester can be prosecuted and sentenced for destroying federal property, can Congress demand that his sentence be enhanced for the otherwise protected speech that has a nexus to his crime? Similarly, could an anti-abortion protester prosecuted for trespassing on the private property of an abortion clinic have his sentence enhanced for engaging in a prayer while trespassing?
These ideas lead me to wonder whether and how "chilling" or "undue burden" doctrines that have often been applied in the First Amendment and other contexts might extend to the Second Amendment. If a person is under constant fear that his (otherwise lawful) possession of a gun could lead to a massive sentence increase if he even gets in a bar fight, won't persons be (unduly) chilled from exercising their constitutional rights to keep and bear arms?
Of course, as I have said in many prior posts, I seriously doubt that courts (or even vocal gun right advocates) will ever work through all the implications of taking and protecting Second Amendment rights seriously for everyone and not just for "preferred individuals." This suggests that in the gun arena, like in so many others, advocates seek principally to protect rights for people they like, not for those they don't.
Some related posts (written both pre- and post-Heller):
UPDATE: Simple Justice has this great follow-up post on these issues, titled "Brandishing a Right After Heller." Here are my favorite snippets:
Eugene has still not wrapped his arms around the idea that if gun possession is a fundamental right, then it must be views as are other constitutional rights, provided all people, good or bad, felons or virgins, citizens or illegals. We are still so used to thinking of the possession of a gun by "bad people" as criminal that we can't quite seem to grasp or accept the real consequence of Justice Scalia's decision....
Now that the proponents of the individual right to keep and bear arms got their wish, it's time to live the hard consequences of intellectual integrity.
Fourth Circuit upholds Virginia's lethal injection protocol
If you are in the mood to spend your afternoon reading about lethal injection law and procedure, the Fourth Circuit serves up the goods. In Emmett v. Johnson, No. 07-18 (4th Cir. July 10, 2008) (available here), a split panel affirms the lethal injection protocol used by the state or Virginia. Here is how the majority concludes (after 40+ pages of discussion):
Virginia's protocol for lethal injection is substantially similar to that approved by the Supreme Court in Kentucky. The lethal injection procedures are supervised by Department officials and the execution is carried out by experienced, well-trained personnel. And, in the 70 executions previously conducted by Virginia, there have been no reported problems....
Because Emmett has failed to produce evidence sufficient to create a genuine issue of material fact that would demonstrate a “substantial” or “objectively intolerable” risk of harm during his execution, the district court did not err in granting summary judgment to the defendants.
Writing in dissent, Judge Gregory concludes his opinion with this paragraph:
In short, the majority effectively grants summary judgment on a crucial issue never presented to the district court: whether material differences exist between Kentucky's and Virginia's protocols. The mere fact that both states use the same three chemicals to execute inmates does little to establish that the protocols are substantially similar, let alone “largely identical,” when such glaring differences exist as to how the executioner administers sodium thiopental, the single drug vital to the procedure's humanity. Recently, the Supreme Court observed that “[w]hen the law punishes by death, it risks its own sudden descent into brutality. . . .” Kennedy v. Louisiana, No. 07-343, 2008 U.S. LEXIS 5262, at *24 (June 25, 2008). And failing to remand to the district court for further fact-finding sends us tumbling faster into that abyss.
Helpful(?) Heller head-scratching
Over at Convictions, a bunch of smart folks are asking effective and provocative questions about the Heller ruling and its aftermath. Jack Balkin explores "Heller and The Constitutional Right of Self-Defense" with these important questions and observations:
Does the right of self-defense secure a right to use weapons other than firearms for self-defense in the home? After all, isn't the point of the right of self-defense to defend oneself, and if other instrumentalities are equally useful for that purpose, why should their possession and use not be equally protected?...
By now you get the basic idea: The right nominally protected in Heller is the right to use guns in self-defense in the home. What is not clear is how important the terms "guns" and "home" are to the this right.
Doug Kmeic responds with "What the Heller? Is Only the Supreme Court's Liberty Enhanced?". His insights include this important and notable political spin:
[I]s the manifold uncertainty raised by the [Heller] opinion (and its consequent unsettling of state and local law and disregard of federalism that we conservative types used to care about) going to be challenged (condemned) by John McCain as an invitation to legislate from the bench? Critiqued by Barack Obama? Or, as is more likely not to be talked about by either since McCain's complaints about judicial activism are as meaninglessly one-sided as most everyone else's, and Obama is just happy to not have the NRA energized in his direction - and who could blame him?
Some recent related posts:
Three months after Baze, has anything really changed?
Back in May in this post, I asked "A month after Baze, has anything really changed?". Two months later, this observation from that prior post still seems spot on: "it seems that all Baze really achieved was a brief national hiatus in executions and a new focal point for legal arguments in lethal injection litigation.... Looking back [now three months] after the Baze ruling, it is hard to see how the Supreme Court's decision to take up lethal injection protocols really advanced the capital ball much at all."
To be more specific, one can check out the execution data from the DPIC: there have been ten executions over the last three months, nine of which were by lethal injection and all of which took place in those southern states that have traditionally executed the most offenders. This list of upcoming executions shows the usual pattern of five to ten executions scheduled for each of the next few months, all concentrated in traditional execution states and most likely to be conducted by lethal injection.
Today, notably, two lethal injection executions are scheduled for today: one in Texas and one in Virginia. But, beyond the usual local stories about the condemned and their crimes and the standard broader debate over the death penalty (such as this new anti-DP piece from notable New York activist and uni-brother), I do not see any continuing national discussion or debate about execution methods in general or about the pace of executions in particular.
Kentucky's prison economy leading to prisoner releases
This local article from Kentucky, headlined "Inmates freed early to save state money," documents my favorite modern sentencing mantra: "It's the prison economy, stupid." Here are specifics from the article:
Kentucky has released nearly 900 inmates -- more than 200 of them originally serving time for murder, rape, burglary and assault -- since the end of May in an attempt to save the cash-strapped state $30 million over the next two years. Those inmates were parole violators who were sent back to prison but received credit against their sentences for the time they were out on parole.
<p>Prosecutors are furious with the move, saying it rewards felons for bad behavior and will lead to more crime. Inmates "are magically being given hundreds, if not thousands, of days of jail credit back to them after they've already shown they can't conform their behavior to societal standards," said Chris Cohron, commonwealth's attorney for Warren County.
But state justice officials say the inmates do not pose a public safety risk and that steps must be taken to curb the rapid growth in the size and cost of the state's corrections system. They say the released inmates had technical violations, such as not reporting to their parole officer or failing a drug test....
Kentucky's prison population has grown faster than the overall population, shooting from 3,000 inmates in 1973 to more than 22,000 today. A study by the Pew Center says the state's inmate population grew faster than anywhere else in the nation last year.
The cost is going up too. Taxpayers spend $500 million a year to house inmates today, compared with $7 million in 1973. Even adjusting for inflation, the state spends roughly 14 times more to house inmates now than in 1973.
Those costs are severe enough that legislators agreed to give inmates credit for their time while on parole, even if they violate the rules that let them out. The General Assembly included the provisions in the budget bill passed in April as a way to save millions of dollars in the next two years....
The provisions in the budget bill are the first steps the state is taking to address the skyrocketing prison population and its costs to taxpayers.... The 2008 legislature set up its own commission to study the penal code and issue a report before July 2011.
Some related posts:
Debate and controversy over sentencing in the UK
There has been a lot of notable sentencing news coming from the UK, and this latest story, headlined "Judges' revolt stops curb on court sentencing powers," highlights judicial push-back on efforts to develop binding sentencing guidelines. Here is how the story starts:
The Government has proposed creating a Sentencing Commission that would make sentences more uniform, allowing ministers to control and predict the flow of criminals into jails. The Ministry of Justice has said that that the move could cut the number of short prison terms imposed and lead to more criminals being given community sentences.
But after a backlash from judges and magistrates, Jack Straw, the Justice Secretary, is likely to water down the proposals.
Another story, headlined "We're out of touch on knife crime, says top judge," highlights concerns about undue sentencing leniency for a UK "crime wave." Here is how this story starts:
Courts are out of touch with Britain's knife crime epidemic, the country's top judge has admitted. Advice for judges and magistrates to punish people caught with knives had failed to keep pace with the knife culture on Britain's streets, warned Lord Phillips of Worth Matravers, the Lord Chief Justice.
July 9, 2008
One (of many?) post-Heller motion to dismiss felon in possession federal indictment
A friend of the blog sent me a copy of a notable motion to dismiss a federal criminal indictment for felon in possession based on Heller. The motion is pretty straight-forward (and can be downloaded below), and the heart of the claim is simply stated in the motion:
Heller is the foundation for Barton’s request to dismiss the indictment because, as it is applied, Section 922(g) is unconstitutional.
What led to Barton’s indictment was the search of his home. The search was conducted after the obtainment of a search warrant. Found inside and taken from Barton’s home were seven (7) pistols, three (3) shotguns, five (5) rifles and 44 pieces of a particular type of ammunition.
It is Barton’s position that he has the Second Amendment right to possess those items in his home and any prosecution based upon those items would violate his constitutional rights under the Second Amendment.
Details about the defendant's criminal history or what prompter the search of his home do not appear in the motion. Still, whatever the defendant's personal particulars, this kind of motion should present some conceptual challenge for anyone who takes seriously all of the Heller majority's assertions about "the inherent right of self-defense [being] central to the Second Amendment right" and the right's unique importance in "the home, where the need for defense of self, family, and property is most acute."
I wonder if any of the many amici support Mr. Heller in the Supreme Court will likewise show an interest in supporting Mr. Barton in federal district court. (As supporters of ACLU are often heard to say, it is easy to support the rights of people you like, but it takes a serious commitment to rights to support the rights of people you may not like.)
Judge Posner (aka Hannah Remanda) finds nine things to hate about unreasonable sentence
The latest Miley Cyrus hit, which has a chorus focused on the "seven things I hate about you," came to mind when I saw the today's Seventh Circuit opinion in US v. Higdon, No. 07-9351 (7th Cir. July 9, 2008) (available here). In Higdon, Judge Posner sets out a point-by-point list of the "apparent mistakes and misunderstandings by the district judge that may have been decisive in his imposing a sentence almost three times the length of the midpoint of the guidelines range (60 months versus 21 months)." Judge Posner's list actually includes nine problems with the district court's sentencing work, and the opinion in Higdon concludes with these notable comments before ordering a remand for resentencing:
The last two mistakes or omissions, and also the first, could reflect the district judge’s possession of a personal penal philosophy at variance with the Sentencing Commission’s; and that, as we said, is permitted. But we can have no basis for confidence in such an inference, and the other six mistakes or misunderstandings that we have identified seem unrelated to a legitimate philosophical difference.
We suggest that when a judge decides to impose an outof- guidelines sentence — whether it is above or below the guidelines range — he write out his reasons rather than relying entirely on the transcript of his oral remarks to inform the reviewing court of his grounds. The discipline of committing one’s thoughts to paper not only promotes thoughtful consideration but also creates a surer path of communication with the reviewing court.
A rare (and interesting) federal parole decision from the Third Circuit
Though the Sentencing Reform Act 1984 abolished parole for the federal system nearly a quarter century ago, there are still some folks in federal prison serving parole-eligible sentences. One such federal prisoner lost an appeal today in the Third Circuit in Furnari v. US Parole Commission, No. 07-2853 (3d Cir. July 9, 2008) (available here). Here is how the opinion begins:
On February 15, 2006, appellant Christopher Furnari filed a habeas corpus petition pursuant to 28 U.S.C. § 2241 in the District Court claiming that the United States Parole Commission (“Parole Commission”) improperly had denied him parole. Furnari is serving a pre-Sentencing Guidelines 100-year sentence (five consecutive 20-year sentences) for RICO and Hobbs Act convictions related to extortion and racketeering. Since the start of his incarceration the Parole Commission has granted Furnari five parole hearings but has not ordered him paroled either at the time of its decision or on some future date. Furnari claims that the Parole Commission has based its denial of parole on an improper calculation of his offense severity rating and has failed to consider mitigating factors in his favor. On June 20, 2007, the District Court denied Furnari’s petition and, on the next day, Furnari filed a timely notice of appeal to this Court.
Is Louisiana working on its Kennedy rehearing petition? Will Gov. Jindal stay true to his word?
According to SCOTUS Rule 44, a party has 25 days to petition the Supreme Court for rehearing, which means Louisiana now less than two weeks to file a rehearing petition in the Kennedy child rape case. Notably, according to quotes in this local news account (with my emphasis added), Louisiana's Governor has essentially promised that the state would be filing a rehearing petition:
Governor Bobby Jindal says the U.S. Supreme Court made a factual error when it banned the death penalty as a sentence for those convicted of raping children.... Jindal says the high court "got this case wrong, plain and simple."
"As both the Governor of this great state and as a parent of three children, I continue to be outraged over the Supreme Court’s absurd decision to overturn a death penalty sentence for the brutal rape of a child while citing that ‘the death penalty is not a proportional punishment for the rape of a child;’ and I will do everything I can to see that this decision does not stand," Jindal said.
Interestingly, the Supreme Court's rules provide that the "Clerk will not file any brief for an amicus curiae in support of, or in opposition to, a petition for rehearing." Thus, politicians and others troubled by the Kennedy ruling cannot formally show support for rehearing through the filing of a brief.
There are lots of other ways, however, that support for rehearing can be demonstrated, and I wonder if Gov. Jindal really will do "everything" he can to see that the Kennedy decision gets reconsidered. Specifically, Gov. Jindal seems tight with Senator John McCain and might here seek the benefits of the Senator's high profile as the Republican presidential nominee. Given that Senator McCain has already bashed the Kennedy ruling (details here and here), it would make sense for Gov. Jindal to ask Senator McCain to speak out and actively support Louisiana's rehearing petition from the campaign trail.
Going further, Gov. Jindal could seek to turn the heat up on these issues by reaching out to Senator Barack Obama and asking him to support Louisiana's rehearing petition. Senator Obama was critical of the Kennedy ruling when it was handed down, and Gov. Jindal could reasonably assert that a "new" kind of politician (especially one with an impressive legal background and a former Constitutional Law professor) should be eager to get the Justices to fix significant errors in important opinions regardless of which political party may be more troubled by the errors.
Further still, Gov. Jindal might also reach out to other members of Congress to urge passage of a resolution encouraging the Justices to rehear Kennedy. (Such a resolution would be akin to the concurrent resolution passed in July 2004 in the wake of the Blakely decision urging the Justices to swiftly consider Blakely's impact on the federal sentencing system). After all, the national legislature should not be content to just sit on its hands when the nation's High Court bungles a key point about federal law in an important and high-profile case.
Of course, I am only scratching the surface here concerning what Louisiana's governor might consider if he is really committed to doing "everything" he can to see that the Kennedy decision does not stand:
- Gov. Jindal might reach out to prominent elected officials in other states to get them to actively express their support for rehearing (as noted here, many claimed to be outraged by the Kennedy decision);
- Gov. Jindal might urge pollsters to do national surveys on public opinion concerning capital child rape to spotlight the majority's mistaken assessment of a national consensus;
- Gov. Jindal might urge the editorial boards of major newspapers around the country to join the Washington Post in urging rehearing in Kennedy;
- Gov. Jindal might urge prominent pundits like Rush Limbaugh and Sean Hannity to use their shows to urge SCOTUS reconsideration.
I seriously doubt that Gov. Jindal really will do "everything [he] can to see that this [Kennedy] decision does not stand." In fact, I have a nagging feeling that Louisiana may not even file a rehearing petition, perhaps because the state's lawyers will conclude that it would be a futile effort. Still, on the theory that politicians should not actively bash judicial rulings in public without being willing to also take efforts to raise their concerns directly to the court, I genuinely hope that Gov. Jindal (and Senator McCain) are interested here in more than just anti-SCOTUS political talking points.
Some related recent posts: