October 6, 2008
New local law tries to prevent sex offenders from "clustering"
This local story from Florida, headlined "New law prohibits sex offenders from clustering," reports on what appears to be another new type of regulation on where sex offenders may live. Here are the details, along with an indication that some lawmakers are eager to create the equivalent of leper colonies for sex offender:
Hillsborough County leaders recently passed a new law that prohibits groups of sex offenders from clustering in one neighborhood. County Commissioners passed a new law that prohibits sex offenders from living together or "clustering." And offenders can occupy no more than 10 percent of units in a mobile home park. Landlords will also be punished if they allow it....
Community activist Michelle Williams pushed for changes so sex offenders aren't so closely concentrated, and county commissioners listened. "We needed to do whatever we had to do on the county level on the legislative side of it to keep our community and children safe," said Commissioner Kevin White....
White says he would like to have sexual offenders housed in a designated commune-like facility in Hillsborough County. The facility would be gated, well marked and a good distance from churches and schools. "Along the perimeter of that facility you could have the postings and the markings that this is a certified sex offender location -- please keep children so many feet away and children beware," White said.
Still more proof that federal courts have no real interest in gun rights
I am not especially surprised that the Second Amendment ruling in Heller has not changed the extreme sentences being handed out for federal gun possession crimes in federal courts. And yet I cannot help but note some of the disturbing cases that still get summary treatment despite Heller's supposedly strong embrace of an individual's right to keep and bear arms.
Specifically, consider the unpublished per curiam opinion today from an Eighth Circuit panel in US v. Smith, No. 08-2043 (8th Cir. Oct. 6, 2008) (available here). Though the details are sketchy from the opinion, it appears that the defendant was acquitted of various gun possession charges at trial, but still was convicted of one count of being a felon-in-possession of a firearm. (The firearm in question is a popular hunting rifle, the Norinco SKS pictured above. Notably, the Smith opinion gets the name of the rifle wrong, calling it a Norico SKS.)
For the crime of possession a popular hunting rifle, the defendant in Smith gets a sentence of more than eight years in federal prison. Of course, Mr. Smith is surely a bad dude, since we know he has a felony record, and that must have been a long record in order to have resulted in an applicable guideline sentencing range of 100 to 125 months. Still, according to Smith opinion, the defendant did have some mitigating circumstances going for him. Moreover, as I keep wanting to believe, if there really is a serious commitment to Second Amendment rights, there should be some constitutional concerns about sending someone to prison for nearly a decade simply for possessing a hunting rifle. But apparently not, since the Eighth Circuit panel summarily affirms the defendant's sentence in Smith.
Some related posts (written both before and after the Supreme Court's opinion in Heller)::
- Prosecutorial headaches after Heller
- Might the ACLU be a strong supporter of all persons' gun rights?
- The post-Heller litigation headaches (and judicial cut-backs) have begun
- Another review of felon efforts to assert Second Amendment rights
- More thoughts about the scope of Second Amendment rights
- More than six years in federal prison for (not quite) bearing arms
Is Senator McCain preparing to attack Senator Obama on crime issues?
Over at The Atlantic, Marc Ambinder has this notable new post suggesting that old-school "soft-on-crime" attacks are part of Senator McCain's strategy to get back his mojo in the final month of the 2008 campaign:
This Tuesday's debate will determine whether there's any re-tightening in battleground states, with the McCain campaign conceding that if the election were to be held this Tuesday, Obama would win more than 300 electoral votes....
Here is the gameplan [for issues on which to attack Senator Obama]:...
2. Obama's record on crime. "Far outside the mainstream." Crime record -- far outside the mainstream...issues like gang violence and crack/powder retroactivity (which even the Bush admin supports but is not popular)... Are they skating close to the race line here? The McCain camp turns it around: since when is a black candidate given a free pass on these issues?
As regular readers know, I have been itching for crime and punishment to be a campaign issue for quite some time. I am not especially surprised that the campaign of Senator McCain would return to classic line of attack on Democrats; indeed, I am surprised that this issue has not come up sooner.
Because there has been so little campaign talk about crime and punishment, it will be interesting to see how the McCain campaign will try to get this issue attention and also whether the media (both mainstream and online) will make up for lost time by giving the issue the coverage it merits. Interestingly, I see that John McCain's website has this updated page on "Fighting Crime," but I do not yet see any new video focused on crime and punishment issues.
Some related posts:
No action in Davis, cert denied in Lett and Vonner, a few Gall GVRs
The Supreme Court has started its new Term by releasing this long order list, which includes a number of notable denials of cert. Most disappointing to me is the appearance of my client, Patrick Lett, on the long list of cert denied (basics here). Also on the list of cert denied are all the notable sentencing cases discussed here a few weeks ago, including the Vonner case from the Sixth Circuit dealing with reasonableness review. There were a couple GVRs based on Gall in the order list, but the list otherwise suggests that the Justices are disinclined to do too much more in the sentencing arena anytime soon.
In addition, as SCOTUSblog details here, the Court "took no action on an appeal testing whether it is unconstitutional to execute a death-row inmate who has a significant claim of innocence. The Court’s 82-page list of orders on pending cases contained no word on Troy Anthony Davis' appeal, Davis v. Georgia (08-66)." I suspect there will be some action in this case before the month is out, although one can never predict the Court's pacing on these kinds of matters.
OJ Simpson subject to 15-year mandatory minimum (though with parole)
Writing here at SI.com, law professor Michael McCann provides an effective review of "the key questions following the guilty verdict of O.J. Simpson on all 12 counts of armed robbery and kidnapping." Here is the Q&A on sentencing:
What will happen at Simpson's sentencing on December 5?
Even if she opts to impose the most lenient possible sentence under discretion, Clark County District Judge Jackie Glass will sentence Simpson to at least 15 years in prison. His conviction alone of first-degree kidnapping with a deadly weapon carries a minimum sentence of 15 years, with the possibility of parole after five years, and a maximum sentence of life of prison with the chance of parole. Judge Glass could run the sentences for each of the 12 charges concurrently or consecutively, the latter of which would be disastrous for Simpson, as he would then serve time for each sentence, one-after-the-other.
Working in Simpson's favor is that judges normally refrain from imposing the maximum possible sentence for first-time offenders and, despite the many controversies surrounding him over the last two decades, Simpson has not previously been convicted of a crime (though he did plead no contest in 1989 to a spousal abuse charge, meaning he neither contested the charge nor admitted guilt). Then again, at age 61, there is a strong probability that, absent a successful appeal and regardless of Judge Glass' leniency, Simpson will spend the remainder of his life in prison.
Given that OJ is not really a classic "first-time offender," I do not think his legal team should be (or will be) expecting Judge Glass to impose the minimum possible sentence. That said, it will be very interesting to watch how everyone involved handles the acquitted conduct issue this high-profile case presents. It will also be interesting for years to come to watch how the Nevada parole authorities deal with this prominent felon as he ages in prison.
October 5, 2008
Sentencing sleepers at start of sleepy SCOTUS term
As suggested in new SCOTUS preview articles from Adam Liptak in the New York Times and Tony Mauro in Legal Times, there are no obvious blockbuster cases on the Supreme Court's docket as the Justice start their new Term this Monday. Nevertheless, for sentencing fans, a few sleepers are already on the docket, and some additional sentencing cases seem likely to garner the Court's attention before the Term concludes next year.
The sentencing sleepers that I am watching as the new term begins include: (1) Oregon v. Ice, which deals with Blakely's applicability to consecutive sentencing determinations; (2) Van de Kamp v. Goldstein, which deals with prosecutorial immunity, (3) Chambers v. United States, which deals with the application of the Armed Career Criminal Act, (4) United States v. Hayes, which deal with the reach of the federal prohibition on certain misdemeanants possessing firearms, and (5) Harbison v. Bell, which deals with the federal appointment of counsel for seeking state clemency. (SCOTUSwiki is a great resource for more background on these cases and other aspects of the new SCOTUS Term.)
Of these five, only Ice and Chambers deal directly with sentencing issues, but the other cases could produce rulings that have significant sentencing echoes. But all these pending matters are sleepers because I think it is unlikely the Justices will be inclined to issue truly ground-breaking opinions in any of these cases. Still, one can never be sure about what might come of these cases or others in a Term with a docket already filled with lots of criminal action (as noted in this new article by Marcia Coyle at The National Law Journal).
Some related SCOTUS docket posts:
- Justice Alito jumping out of the cert pool!!
- More on Justice Alito's climb out of the cert. pool
- Patrick Lett's case (and a few other notable sentencing cases) among "Petitions to Watch"
- Roberts, the cert pool, and sentencing jurisprudence
- New Justices content with their dip in the pool
- What SCOTUS should be doing
- Solving the SCOTUS docket mystery
- Additional SCOTUS docket dissection
- Looking ahead to SCOTUS docket dynamics
- My (already dated) musings on the SCOTUS criminal docket (with a link to my recent article on SCOTUS docket dynamics)
UPDATE: How Appealing has collected lots of SCOTUS pre-game press coverage over here.
New Hampshire latest state exploring incarceration alternatives
As detailed in this AP article, New Hampshire can be added to the states seriously exploring alternatives to incarceration. Here are a few details:
New Hampshire is involved in multiple efforts to evaluate the benefits of alternative sentencing programs for nonviolent offenders. A commission that includes government officials, legal experts and county, prison and mental health care administrators met twice last month to discuss how the state could save money through programs that keep nonviolent offenders out of jail.
"We wanted to get together the people who know the most about these issues and take a judicial approach to how we can deal with inmates convicted of crimes when they are not violent and ask, ’Is sending them to a prison cell the best way we can be dealing with our criminal justice obligations?’" said state Sen. Maggie Hassan, D-Exeter, who sponsored the bill creating the commission....
Next month, a two-day conference will bring county and state leaders together to exchange ideas on creating statewide sentencing alternatives for nonviolent offenders with mental illness or drug dependency. The New Hampshire judicial branch recently was selected as one of four jurisdictions in the country for a national project designed to help states improve court responses to people with mental illness, and the president of the New Hampshire Bar Association said she is making the issue a top priority.