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July 26, 2008

Three more uneventful(?) lethal injections, including one with a political spin

As detailed in this DPIC list, Mississippi and Texas and Virginia all completed executions over the last few days, and I have not seen any reported problems with the lethal injection protocols used in these executions.  Perhaps all the Baze litigation has helped motivate state official to make extra sure that the lethal injection process is conducted in as carefully as possible.  I cannot recall reports of any serious problems with any of the 15 executions that have now taken place over the last three months since the Baze de facto moratorium was lifted after the Supreme Court's ruling.

Though technologically uneventful, this local report from Mississippi highlights that its execution had an interesting political spin as a result of the condemn's last words:

Before he died Wednesday evening, death row inmate Dale Leo Bishop apologized to his victim's family, thanked America and urged people to vote for Democratic presidential candidate Barack Obama. "For those who oppose the death penalty and want to see it end, our best bet is to vote for Barack Obama because his supporters have been working behind the scenes to end this practice," Bishop said....

A Lee County jury convicted Bishop in 2000 of participating in the murder of Marcus Gentry, who was beaten to death in December 1998 with a claw hammer. His body was found along a logging road near Saltillo.  Bishop did not deliver the fatal blows. He became only the eighth person put to death who did not directly kill his victim among the more than 1,100 executed since the U.S. Supreme Court reinstated the death penalty in 1976 -- not including contract killings.

Bishop's final words were: "God bless America.  It has been great living here.  That's all."  Bishop called Gentry's beating death on Dec. 10, 1998, a "senseless and needless act."  Earlier in the day, Bishop described the fatal beating as "a fight that had gone too far," state Corrections Commissioner Chris Epps said....

Bishop, who was mentally ill, asked a judge for the death penalty after he was convicted.... The other man convicted of Gentry's murder, Jessie Johnson, who was tried separately, is serving a life sentence. Protesters have used the disparity in the two sentences to illustrate the injustice they say is inherent in the death penalty.  Under Mississippi law, an accessory before the fact can be convicted of the same crime someone else commits.

I doubt the Obama campaign will be eager to embrace the endorsement of a mentally ill, now-executed defendant.  Nevertheless, the fact that Bishop coupled his political advocacy with a set of patriotic last words ("God bless America.  It has been great living here.") provides yet another example of intriguing realities that attend the final moments before a state imposes the ultimate punishment.

July 26, 2008 in Baze lethal injection case, Campaign 2008 and sentencing issues, Death Penalty Reforms | Permalink | Comments (9) | TrackBack

Are we headed toward virtual sentencing proceedings?

Because I am always interested in the intersection of sentencing and technology, I found notable this local story headlined "Sentencing in steroid case is first by videoconference."  Here are excerpts:

The sentencing Thursday in federal court was typical in every way except one.  While the judge and the attorneys were in a courtroom in Scranton, the defendant was 900 miles away in Minneapolis.  In what is believed to be a first for the William J. Nealon Federal Building & U.S. Courthouse, a woman arrested as a result of an illegal steroid investigation was sentenced by videoconference.

U.S. District Judge Thomas I. Vanaskie sentenced Cathy Jones, 43, to two years’ probation for her guilty plea earlier this year to aiding and abetting possession of anabolic steroids. Judges at the courthouse have accepted guilty pleas by videoconference, but there had never been a sentencing, Judge Vanaskie said afterward....

Judge Vanaskie said he was pleased the dignity of the proceeding was maintained. He was also surprised that the video link did not lessen the emotional impact when Ms. Jones addressed the court, sobbing as she told the judge, “I’m just trying to start a new life.”

“I was worried about that — that it was too sterile,” Judge Vanaskie said. “But I didn’t have that impression today.”  The judge said while such proceedings may become more common, they will not become the norm.  He cited the unique circumstances of Ms. Jones’ case — she pleaded guilty to a misdemeanor, and the sentencing guidelines indicated a probationary sentence. If she had been facing imprisonment, he probably would not have agreed to the videoconference, he said....

Ms. Jones, who was living in Somerset, Texas, at the time of her arrest, has since separated from her husband and moved to Minnesota to be closer to her family.  She asked to be sentenced by videoconference, saying traveling to Scranton would be a hardship because of her limited means.

I am pretty sure that videoconference sentencings have previously taken place when the defendant has requested the use of technology to avoid the costs and hassles of travel to a distant courthouse.  And once the technology is put in place and participants get accustom to the process, I suspect sentencing by videoconference could become common because if it proves to be a significant cost-saver for underfunded court systems.

July 26, 2008 in Procedure and Proof at Sentencing | Permalink | Comments (3) | TrackBack

July 25, 2008

Judge Gertner assails quantity-based drug guidelines

District Judge Nancy Gertner has a new opinion which takes on and takes down the notion that drug quantities provide a sound basis for sentencing levels.   Here are parts of the start of Judge Gertner's work in US v. Cabrera, No. 06cr10343-NG (D. Mass. July 25, 2008) (available for download below):

Oscar Cabrera ("Cabrera") was, at most, a delivery man caught in a government sting. He hardly fits the profile of a major drug dealer.  He was told -- apparently at the last minute -- to pick up the drugs that undercover government agents had brought from Texas.  At the time of the deal, he was homeless, living out of his car; he had little or no idea about what was going on in the drug deal; he had no role in negotiating it, no money with him at the time of the sting, and was not remotely capable of investing in this drug transaction, or for that matter, any other.  The real purchasers did not trust him with much, and surely not the drug money. He was to receive perhaps $250 to $500 (the amount was never set) for drugs valued far, far more than that. He had no prior criminal record. The agents had no idea who he was prior to his arrest. The real purchasers got away.  Cabrera was caught -- quite literally -- holding the bag.

The statute under which Cabrera was prosecuted, and the Federal Sentencing Guidelines, focus largely on the quantity of drugs the defendant had, minimizing the significance of other relevant -- and important -- questions, like the defendant's real role in the offense or his background....  If I were to follow the Guidelines and sentence Cabrera solely on the basis of the drugs government agents brought with them, the result would be a classic case of false uniformity. False uniformity occurs when we treat equally individuals who are not remotely equal because we permit a single consideration, like drug quantity, to mask other important factors.  Drug quantity under the Guidelines treats as similar the drug dealers who stood to gain a substantial profit, here the purchasers who escaped, and the deliveryman, Cabrera, who received little more than piecework wages.

Download gertner_cabrera_final.pdf

July 25, 2008 in Booker in district courts | Permalink | Comments (4) | TrackBack

Interesting ruling on prosecutors' filing cooperation motions

Thanks to this post at AL&P, I saw that the First Circuit yesterday issued an interesting ruling in US v. Mulero-Algarin, No. 07-1701 (1st Cir. July 24, 2008) (available here), concerning federal defendant's getting cooperation credit and motions from the government.  Here is how the opinion starts:

A criminal defendant who, after he is sentenced, elects to cooperate with the government in the prosecution of others may in certain circumstances receive a reduced sentence. See Fed. R. Crim. P. 35(b).  Within wide limits, however, the government holds the key that can unlock the door to such leniency. This appeal implicates the extent of the government's discretion in deciding when to withhold the use of that key.  Concluding, as we do, that the district court acted appropriately both in refusing to compel the government to file a Rule 35(b) motion and in declining to allow either discovery or an evidentiary hearing, we affirm its ruling.

July 25, 2008 in Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack

Bad NBA ref may have pulled a tough judge

As detailed in this New York Times article, headlined "Two Punishments Suggest Stiff Penalty for Donaghy," early sentencings in the NBA betting case suggest that the crooked ref is not going to get a pass:

Two co-defendants of the disgraced N.B.A. referee Tim Donaghy were sentenced Thursday, and legal experts said their sentences indicated that Donaghy was likely to face a stiff punishment when he appears in court Tuesday.

In federal court in Brooklyn, United States District Judge Carol Amon sentenced one of Donaghy’s co-defendants, Thomas Martino, to 12 months and a day in prison. Federal sentencing guidelines suggested that he should have received 8 to 14 months. The other co-defendant, James Battista, was sentenced to 15 months. The guidelines suggested he should have received 10 to 16 months.

The guidelines in Donaghy’s case suggest a prison sentence of roughly 27 to 33 months.

When Donaghy pleaded guilty last August, he admitted to providing inside information to his co-defendants and to placing bets on games he officiated. On Thursday, Amon highlighted how the crimes had compromised basketball games. “No single person is more important to the game than the referee,” she said. “If his interest is compromised in any way, the entire sport is compromised.”....

Donaghy’s situation is slightly different from his co-defendants’. Donaghy was the only defendant who cooperated with the federal authorities, although the government has played down his cooperation.

At a hearing July 9, federal prosecutors said that many of the allegations made by Donaghy proved to be unsubstantiated. Amon said at the time that the information Donaghy had provided had not necessarily turned out to be strong enough to help the government.

Some related posts:

July 25, 2008 in Celebrity sentencings | Permalink | Comments (20) | TrackBack

Horrible ending to one spam sentencing story

I have been having some fun while following the federal sentencings of various "spam kings."  But, as detailed in this Denver Post article, the latest development after one spammer escaped from a low security federal prison is no laughing matter:

Just four days after escaping a federal minimum-security work camp, "Spam King" Eddie Davidson shot his wife and child and wounded a teen-age girl before turning the gun on himself.

Sheriff's deputies responded to a report of gunfire in the small plains town of Bennett at about 11:15 a.m. today and found Davidson, 29-year-old Amy Lee Ann Hill and their 3-year-old daughter shot to death.

Davidson's most recent spam business, Power Promoters, was based in Bennett....

Media and prosecutors have dubbed Davidson "The Spam King" for years for his prolific anonymous e-mails selling a raft of products.  Davidson had pleaded guilty to tax evasion and falsifying information about the sender of e-mail pitches for low-cost, high risk stocks. He was sentenced in April to 21 months in federal prison camp in Florence and reported to begin his sentence in late May.

Assistant U.S. Attorney Tim Neff said Davidson had become a "consultant" to the FBI investigating other spammers.

This story is a very sad.  The fact that Davidson escaped and snapped while serving as a "consultant" to the FBI has me wondering if the government was aware of any warning signs that this guy might go postal.

July 25, 2008 in Purposes of Punishment and Sentencing | Permalink | Comments (6) | TrackBack

July 24, 2008

Interesting California opinion about right of allocution at sentencing

This new piece from the San Francisco Chronicle discusses this interesting new ruling from the California Supreme Court.  Here first is the press account:

A criminal defendant's right to address the judge before sentencing and plead for mercy without being cross-examined, a right traced back to 17th century England, doesn't exist in California, the state Supreme Court ruled today.

In a case from San Mateo County, the justices ruled unanimously that a defendant who is about to be sentenced must be treated like any other witness — testifying under oath and subject to cross-examination by the prosecutor — when asking for leniency.

Here is the start of the unanimous opinion in People v. Evans:

California law requires that in a criminal case a trial court must, before imposing sentence, ask the defendant whether there is “any legal cause to show why judgment should not be pronounced against him.” (Pen. Code, § 1200.)  This inquiry is called the “allocution.” At issue is whether, in response to the allocution, the defendant has the right to make an unsworn personal statement in mitigation of punishment.  Here, the Court of Appeal held that a criminal defendant has no such right, expressly disagreeing with In re Shannon B. (1994) 22 Cal.App.4th 1235 (Shannon B.), in which a different Court of Appeal reached a contrary conclusion.  We conclude that California law gives a defendant the right to make a personal statement in mitigation of punishment but only while under oath and subject to cross-examination by the prosecutor.

July 24, 2008 in Procedure and Proof at Sentencing | Permalink | Comments (8) | TrackBack

Dyslexic doc involved in lethal injection in Arizona

As first discussed here two years ago, a federal judge ordered Missouri's machinery of death to come to a halt in 2006 based in part on evidence that the doctor involved in lethal injections readily admitted that he is dyslexic and had thus could have problems carrying out the execution protocol.  Then, as discussed here, last year there was a report indicating that this same doctor was a part of the federal government's execution team.  Now, The Arizona Republic has this new story indicating that the doctor was involved in a 2007 execution in Arizona.  Here is how the story begins:

A Missouri surgeon who was banned by a federal judge from taking part in capital executions by lethal injection in his home state apparently participated in Arizona's most recent execution.

Dr. Alan Doerhoff is believed to have taken part in the May 22, 2007, execution of Robert Comer, 11 months after Doerhoff's Missouri lethal-injection procedure was ruled unconstitutional and eight months after the physician was prohibited from further executions in Missouri because of questions about his standards and competence.

Doerhoff's signature appears below the flat line of an electrocardiogram tape that recorded Comer's last heartbeats, suggesting that Doerhoff at least monitored the murderer's condition in his final moments.

The doctor's techniques appear to have influenced new Arizona procedures for execution by lethal injection, specifically a practice of administering the killing chemicals through a catheter in the groin instead of through an arm. It's a method that some critics say is too complex and contributes to higher risks of error that could lead to undue suffering.

According to a prominent medical expert on lethal injection, that practice occurs only in the Missouri and federal protocols, which Doerhoff is believed to have influenced or devised.  He is known to have participated in executions for those jurisdictions.

The Arizona Department of Corrections at first denied having any association with Doerhoff, a Jefferson City, Mo., resident.  When told that The Republic had his signature from Comer's electrocardiogram, Corrections officials cited state statutes that protect the identity of Arizona executioners.

Some related posts:

July 24, 2008 in Death Penalty Reforms | Permalink | Comments (3) | TrackBack

Around the blogosphere

Sentencing fans will find a lot worth reading in all the new stuff recently posted at:

July 24, 2008 in Recommended reading | Permalink | Comments (2) | TrackBack

Major California report urges doing away with juve prisons

The Little Hoover Commission recently released a major report with recommendations for improving juvenile justice in California. The report, titled "Juvenile Justice Reform: Realigning Responsibilities," can be accessed here. This official press release, which provides an effective summary of the report, begins this way:

The Little Hoover Commission on Monday urged the governor and the Legislature to lay the groundwork for the creation of county-run, state-funded, regional rehabilitative facilities for high-risk, high-need juvenile offenders and for the eventual elimination of state juvenile justice operations.

In its report, Juvenile Justice Reform: Realigning Responsibilities, the Commission recommends streamlining and consolidating the state’s juvenile justice operations into an Office of Juvenile Justice. The new office should be outside the Department of Corrections and Rehabilitation and would combine the activities of the chief deputy secretary of juvenile justice as well as juvenile justice grants administration and oversight now done by the Corrections Standards Authority.

Media coverage of this report has been focused on the call to eliminate juve prisons:

July 24, 2008 in Offender Characteristics | Permalink | Comments (1) | TrackBack

Waiting and waiting and waiting on the row

A_deathrowgraf This morning's USA Today has this piece about the continuing delays between the imposition of death sentences and executions.  Here are excerpts:

The time prisoners spend on death row has nearly doubled during the past two decades. Legal experts predict it will rise further as states review execution procedures and prisoners pursue lengthy appeals.

Waits rose from seven years in 1986 to 12 years in 2006, the latest Justice Department statistics show.  In all five states with the most prisoners on death row — California, Florida, Texas, Pennsylvania and Alabama — offenders spend more time in prison than they did four years ago, a USA TODAY survey of state records through 2007 found.

In California, wait times average nearly 20 years, a state commission report in June says. It costs about $90,000 more per year to house a death row inmate than other inmates.

In April, the U.S. Supreme Court upheld Kentucky's lethal injection method, ending an informal halt to executions nationwide for seven months. Of the 10 states with the most prisoners on death row, five launched their own reviews of lethal injection procedures in the past two years. Those resulted in suspensions or delays in executions.

July 24, 2008 in Death Penalty Reforms | Permalink | Comments (2) | TrackBack

Still more sentencing nunsense

A few weeks ago I noted here a local Nebraska story about an ailing elderly nun getting a tough sentence for stealing more than $250,000 to support her gambling habit.  As noted in this new piece, headlined "Omaha Nun Says Priest Interfered With Sentencing," the criminal justice liturgy in this case continues:

The Omaha nun sentenced 3-5 years for embezzling money from the Catholic Church now claims the priest of the judge who sentenced her influenced her sentence.  73-year-old Barbara Markey was sentenced two weeks ago for stealing $250,000 from the Archdiocese.

Markey's attorney tells KPTM FOX 42 News that he has filed to withdraw her guilty plea, and is asking for the court to reconsider her sentence.  Her attorney also claims that the judge who sentenced Markey was influenced by his own priest, who he says wrote a letter asking for a harsher sentence.

July 24, 2008 in Offender Characteristics | Permalink | Comments (0) | TrackBack

Another report from the USSC alternatives symposium

While awaiting official reports or materials from the US Sentencing Commission about its recent symposium on alternatives to incarceration, I am able to reprint a report on some particulars from the event that I received via e-mail:

At a Sentencing Commission symposium in Washington on Tuesday, BOP Director Harley Lappin stated there would be no wholesale move to increase halfway house time to more than six months despite the new statutory authority allowing them to do so.  His reasoning was that "studies" show that for most inmates more than six months in a halfway house is counterproductive. He also stated that it was cheaper to house inmates in minimum and low-security prisons than it is in halfway houses.... Nevertheless, Lappin said that inmates would be considered for halfway house placement of more than six months on a "case-by-case basis."

During the conference, it was estimated that only about 650 BOP inmates presently qualify for early release under the provisions of the Second Chance Act (i.e. inmates at least 65, never convicted of a crime of violence or a sex offense, and having served ten years or 75% of their sentence). This is 0.003% of the 201,000 federal inmates. The pilot program is to begin on October 1 and appears it will not be limited to just one institution.

At a the same symposium, Beth Weinman, BOP's RDAP Coordinator, said that the average sentence reduction for inmates successfully completing the TDAP program is now 7.64 months. She attributed this to the large numbers of inmates eligible for the program and the lack of money to expand the program. She estimates that 40% of the inmates in BOP custody have a diagnosable substance abuse problem and that there is an RDAP waiting list of 7,000 inmates.

Ms. Weinman also said that the BOP is working on a program statement to define exactly what documentation suffices to complement the Bureau's own diagnosis of an inmate's substance abuse problem. Typically, the presentence report or documentation from a treatment provider is acceptable proof, but what else might be varies from institution to institution.

Some related recent posts:

July 24, 2008 in Criminal Sentences Alternatives | Permalink | Comments (1) | TrackBack

July 23, 2008

No wonder the spam keeps coming...

given that this local news item reports "'Spam King' escapes from federal prison in Florence."  Here are more details:

The man known as "The Spam King" walked away from a minimum-security federal prison Sunday in Florence and was last seen in Lakewood.   Edward "Eddie" Davidson, 35, was sentenced in April to serve 21 months in prison for his role in sending hundreds of thousands of unsolicited fraudulent e-mails touting certain penny stocks as excellent investments....

He'd been in the Florence facility for about a month and a half when he escaped.  According to Lakewood police Tuesday, Davidson apparently escaped when his wife came to visit him Sunday in Florence.  "He jumped in the car with his wife," said Will Cochenour of the Lakewood police Tuesday. "When they were leaving, he forced her in the car, brought them home and left after a change in clothing. He's still at large."...

U.S. Marshals are leading the search for Davidson, with the FBI, IRS and the Rocky Mountain Safe Streets Task Force assisting. A warrant for Davidson was issued shortly after his escape.

Between 2002 and 2005, Davidson's Power Promoters spamming network promoted watches, perfumes and other products, U.S. Attorney Troy Eid said. Then he started concentrating on a Texas company's penny stock.

My own theory is that Eddie Davidson is headed west in the hope of tracking down Robert Alan Soloway, who appears to have "stolen" the title of "Spam King" as detailed in prior posts here and here on Soloway's federal sentencing.  Soloway got more than twice the time that Davidson got, so I think Soloway has come by the title honestly.  Nevertheless, I am hoping that Vince McMahon gets wind of this potential feud and arrange a cyber-cage match to settle who the real Spam King is.

July 23, 2008 in Offense Characteristics | Permalink | Comments (6) | TrackBack

Counting to five in the Kennedy rehearing debate

The Kennedy rehearing petition is a very interesting read (basics here), especially if one keeps in mind the likelihood — or should I say unlikelihood — that five Justices will vote for rehearing. Here are a few completely uninformed speculations about the challenges I think Louisiana faces in getting another bite at the Kennedy apple.

First, I think it is unlikely that Justice Stevens or the other three more liberal Justices will be eager to take up this case again. Justice Stevens has expressed his view that he now thinks the death penalty is unconstitutional in all cases, and I surmise that Justices Breyer, Ginsburg and Souter may all be moving in that direction.

Second, though I think Justice Kennedy may be concerned and embarrassed about having his name on a prominent opinion that involves a notable mistake, I am not sure he will want to return a spotlight on these matters.  Notably, circuit courts frequently make amendments, without having reargument, to important opinions when petitions for rehearing spotlight flaws. I do not know if the Supreme Court ever has or ever would take this approach, but it might be Justice Kennedy's preference.

Third, I am not sure any of the dissenters in Kennedy really want to return to this battle.  They may know that the outcome is unlikely to change, and the Chief and/or other might be disinclined to have a lot of child rape sound and fury signifying nothing.  Of course, if the Chief or others think the integrity of the Court is at issue, they may urge and vote for rehearing nonetheless.

Again, these are all rank speculations, and I'd be interested to hear others' views and thoughts.

July 23, 2008 in Kennedy child rape case | Permalink | Comments (14) | TrackBack

July 22, 2008

Another prominent call for sex offender GPS tracking

As detailed in this local article, a state official in Pennslyvania is making a prominent call for GPS tracking of sex offenders:

State Auditor General Jack Wagner, state Sen. Jane Orie and other officials are urging the Legislature to require convicted sex offenders to wear ankle bracelets containing "global positioning system" technology for five years after being released from jail.

Mr. Wagner, a former state senator from Beechview, released a report today saying that in June, the state had "lost track of 923, or nearly 10 percent, of the state's approximately 9,800 registered sex offenders."

Some related posts on GPS tracking:

July 22, 2008 in Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

"'Spam King' gets nearly four years in prison"

The title of this post is the headline of this local article detailing the sentencing outcome in a case that generate lots of notable comments in this prior post.  Here are some of the specifics:

U.S. District Judge Marsha Pechman ended the reign of the so-called "Spam King," who earned his title by sending out millions of unwanted e-mails, by sentencing the Seattle man to nearly fours years in prison Tuesday....

[Assistant U.S. Attorney Kathryn] Warma and fellow Assistant U.S. Attorney Richard Cohen had asked Pechman to send Soloway away for nine years. But another defense attorney, Richard Troberman, wanted a sentence of two years at the federal prison camp in Sheridan, Ore., and a fine of under $100,000.

Pechman first heard from Soloway, then chose a middle ground.

July 22, 2008 in Celebrity sentencings | Permalink | Comments (2) | TrackBack

What does the future hold for the US Sentencing Commission?

I just learned today that the Senate Judiciary Committee, at a hearing scheduled for tomorrow will be considering the executive nomination of "William B. Carr, Jr., to be Member of the United States Sentencing Commission."   It is my understanding that Mr. Carr has been nominated to replace Commission John Steer, who apparently has already official resigned from the USSC after distinguished service for more than two decades with the judicial agency.  (Disappointingly, I cannot find any official announcement of Commissioner Steer's retirement, but this list of Commissioners dated June 2008 does not have his name listed.)

News of this notable transition on the USSC has me wondering again what's on tap for the Commission.  The agency continue to do a great job with data runs, as evidenced by its recent posting of July 2008 data on post-Gall/Kimbrough sentencing and on crack retroactivity motions.  Also, the USSC just completed last week a terrific symposium on Alternatives to Incarceration (though I am still awaiting some on-line posting of testimony or other reports on the event ).  But, though surely very busy while dealing with the fall-out from recent SCOTUS rulings and its recent crack actions, the USSC has been pretty quiet about what it may be planning for the future.

Of course, with a new administration on the horizon and crime and sentencing issues always fraught with political overtones and under-currents, perhaps less is more from the USSC these days.  Still, a sentencing nerd like me cannot help but speculate about what's up and what's upcoming at the US Sentencing Commission.

July 22, 2008 in Who Sentences? | Permalink | Comments (2) | TrackBack

An argument against — and for!— felon gun rights

Today's New York Post has this interesting commentary headlined "GUN RIGHTS FOR FELONS?".  The piece starts with an originalist argument against felons having Second Amendment rights after Heller, but then concludes by asserting that some felons should have Second Amendment rights after Heller:

The amendment guarantees a "right of the people to keep and bear arms" — and the Founding Fathers did not think "the people" included criminals.  Under the law as they knew it, felons were "civilly dead": They had no legal rights whatever.  All their property (including guns) was forfeit.  (Moreover, they were subject to execution — which made their rights irrelevant.)

In all societies recognizing a right to arms, that right was limited to "the virtuous citizenry." In this, as in much else, our Founders looked back to the ancient Greek and Roman republics. There, every free man was armed so as to be prepared both to defend his family against criminals and to man the city walls in immediate response to the tocsin's warning of approaching enemies. Thus did each good citizen commit himself to the fulfillment of both his private and his public responsibilities.

In sum, the constitutional right to arms simply does not extend to people convicted of serious criminal offenses.  By "serious," I refer to the early common law — under which felonies were real wrongs like rape, robbery and murder.

Unfortunately, modern legislatures have added a host of trivial felonies.  For instance, in California an 18-year-old girl who has oral sex with her 17-year-old boyfriend has committed a felony.  The courts should rule that conviction of such a trivial felony can't deprive such a "felon" of her right to arms.

But the fact remains that people who have been convicted of serious criminal offenses have thereby lost their rights under the Second Amendment.  They are subject to our laws against felons possessing firearms.

Because I am not a Second Amendment or even a constitutional historian, I cannot directly address the originalist argument made here for categorically depriving all those convicted of "serious criminal offenses" of their Second Amendment rights.  But I can attest to the fact that lots of seemingly less serious criminal offenses — such as the crimes federal crimes committed by Scooter Libby and Martha Stewart and 'Lil Kim and Marion Jones and a host of state crimes — under current law make a person a felon completely prohibited under federal law from ever possessing a gun for self defense in the home.  It seems that the author of the Post commentary would support arguments that those convicted of whatever felonies are not "serious" ought to still be able to exercise Second Amendment rights.

Some related Heller posts:

July 22, 2008 in Second Amendment issues | Permalink | Comments (18) | TrackBack

Third Circuit finds Child Online Protection Act facially unconstitutional

The Third Circuit has been giving the Constitution a work out recently.  Late last week, as detailed here, it found unconstitutional a federal law prohibiting distribution of images of animal creulty, and today it finds that the Child Online Protection Act facially violates the First and Fifth Amendments. Today's unanimous panel ruling in ACLU v. Atty Gen USA, No. 07-2539 (3d Cir. July 22, 2008) (available here), starts this way:

This matter comes on before this Court on an appeal from an order of the District Court entered March 22, 2007, finding that the Child Online Protection Act (“COPA”), 47 U.S.C. § 231, facially violates the First and Fifth Amendments of the Constitution and permanently enjoining the Attorney General from enforcing COPA.  The Government challenges the District Court’s conclusions that: (1) COPA is not narrowly tailored to advance the Government’s compelling interest in protecting children from harmful material on the World Wide Web (“Web”); (2) there are less restrictive, equally effective alternatives to COPA; and (3) COPA is impermissibly overbroad and vague.  We will affirm

July 22, 2008 in Offense Characteristics | Permalink | Comments (0) | TrackBack