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November 11, 2008

Media coverage of Hayes oral argument is not gun shy

I complained in this post yesterday that the Second Amendment got absolutely no love or attention from the Supreme Court when it heard oral argument in the Hayes case.  Specifically, neither the Second Amendment nor the decision in Heller was even mentioned once during the Hayes oral argument.  For this reason and others, I was quite intrigued to discover this kind of coverage of the Hayes oral argument today in the Los Angeles Times.  Note this heading and subheading for the report on Hayes

Domestic violence abusers could get gun rights -- The Supreme Court will decide whether people convicted of misdemeanor assault against their spouses or partners should have their 2nd Amendment rights restored because of a flaw in federal law.

Consider also the story's lead and these additional snippets:

Thousands convicted of a misdemeanor for threatening or assaulting a spouse or girlfriend could once again own guns because of a flaw in the federal law.  That prospect grew more likely Monday after the Supreme Court gave a skeptical hearing to a government lawyer who argued that a crime of domestic violence should result in a loss of gun rights....

But during Monday's argument, Scalia said possessing a gun was "lawful conduct," and a wife-beating charge lodged against a West Virginia man was "not that serious an offense."...

The Brady Center to Prevent Gun Violence said a ruling for Hayes "could re-arm thousands of convicted domestic violence abusers."  About 14% "of all police officer deaths occur during a response to domestic violence calls," the group said.  On the other side, the Second Amendment Foundation said the "fundamental right" to own a gun should not be taken away over a misdemeanor.

This kind of media coverage reassures me that Hayes is a Second Amendment sleeper case even if the Justice may be eager to let a sleeping Heller dog lie.

Some recent related Second Amendment posts:

November 11, 2008 in Second Amendment issues | Permalink | Comments (7) | TrackBack

Interesting international sentencing controversy in middle east

Anyone troubled by the nature and state of sentencing law and policy in the United States can perhaps take some comfort that other countries also have their share of dysfunctional sentencing experiences.  The latest example comes from this notable AP story reporting on recent activity in the Middle East:

Demonstrators in Cairo demanded Tuesday that Saudi Arabia release an Egyptian doctor sentenced to 15 years in prison and 1,500 lashes after he was convicted of malpractice —reportedly after treating a Saudi princess....

Raouf Amin el-Arabi, a doctor who has been serving the Saudi royal family for about 20 years, was convicted last year of giving a patient the wrong medication.  Egyptian newspapers reported that he was accused of driving a Saudi princess "to addiction."

He initially was sentenced to seven years in prison and 700 lashes, but when he appealed two months ago, the judge not only upheld the conviction, but more than doubled the penalty to 15 years in prison and 1,500 lashes.

Family members, friends and colleagues gathered at the headquarters of Egypt's doctors' union in downtown Cairo and urged Saudi King Abdullah to pardon el-Arabi.... "1,500 lashes is unprecedented in the history of Islam," read one banners carried by protesters.....

El-Arabi is in a jail in the Red Sea port city of Jeddah and is believed to have received at least one of his weekly installments of 70 lashes so far.

November 11, 2008 in Sentencing around the world | Permalink | Comments (2) | TrackBack

Why federal sentencing reformers must focus on the USSC and lower courts

This new article from Tony Mauro, along with the Supreme Court's refusal yesterday to consider a pair of victim impact capital cases (basics here), highlights one of many reasons that would-be sentencing reformers should ignore post-election buzz about possible Supreme Court transitions.  Here is a snippet from the piece:

Conventional wisdom, accelerated by Barack Obama's victory Nov. 4, has [Justices] Ginsburg, Stevens and Justice David Souter, all on the moderate-liberal wing of the Court, heading for the exits during Obama's first term.

As the theory goes, all three justices would be happier being replaced under Democrat Obama than they would have been under Republicans John McCain or, for the last eight years, President George W. Bush.  Names of possible replacements for the three are bandied about as often as candidates for Obama's Cabinet.

But as Ginsburg's broadly dropped hints suggest, justices don't always follow political timetables for their departures. They often remain as long as they feel their health and their work product are still good.  The political persuasion of the president, while sometimes a factor justices consider in timing their departures, rarely is decisive.

Though I think it likely that President-Elect Obama will get to replace at least Justice Stevens in the not-too-distant future, it is almost impossible to imagine a replacement that will be as pro-defendant as Stevens has become on sentencing issues.  Thus, for folks interested in sentencing issues, any likely SCOTUS transitions may actually move the Court slightly to the right on sentencing issues.

These dynamics are reversed, however, when it comes to the US Sentencing Commission and lower federal courts.  Though the USSC has been a very moderate and responsible institution over the last few years, the appointment of new Sentencing Commissioners could potentially move the USSC to the left and could make the USSC a more vocal advocate for systemic reforms to the entire federal sentencing structure. 

Similarly, though I do not expect President-Elect Obama to look for judicial nominees who will ensure the "mass freeing of criminal defendants" as some have predicted, I do expect the average Obama nominate to be somewhat more defendant-friendly than the average Bush nominee (and even more defendant-friendly than the average Clinton nominee).  Especially because federal district and circuit courts are going to define the doctrines and realities of federal sentencing as long as Booker is the law of the land, federal sentencing reformers should give particular attention to the names and backgrounds of those persons who are discussed for lower federal court positions in the weeks and months ahead.

Some related posts:

November 11, 2008 in Who Sentences? | Permalink | Comments (1) | TrackBack

New and notable website from LDF

I am pleased to report that the NAACP Legal Defense Fund has this impressive new website, "The Defenders Online."  Here is how the website describes itself: 

For more than 60 years, the NAACP Legal Defense and Educational Fund (LDF) has fought to make the promise implicit in the hallowed words of the Constitution a reality and help America reach its highest potential.

Now, LDF is expanding its responsibility and challenge as the nation’s premier civil rights law firm through TheDefendersOnline.com, a new forum for the discussion of those ideas that have always been at the heart of America’s civil rights struggle: race, justice, equality and democracy.

LDF plans to be a dynamic force in the national discourse about current events, examining key issues in the United States and around the world with contributions from a stellar and diverse mix of attorneys, leaders, authors, activists, educators, novelists, students, poets, journalists, elected officials, bloggers and others who have compelling insights about the progress that inspires and the problems that challenge us today.

The section of the website I will be checking regularly is under this tab for Criminal Justice, though I have also noted a lot of cool content under This Week in History.

November 11, 2008 in Recommended reading | Permalink | Comments (0) | TrackBack

An example of homicide victim's family asking for sentencing leniency

The Supreme Court's disinclination to consider a pair of victim impact capital cases (basics here) has already prompted some commentors to complain about victims having a role in the criminal justice system.  But this local story from Utah provides yet another example of how victims can often be a voice for sentencing leniency even when the defendant is facing homicide charges:

Driving while talking on a cell phone is a dangerous mix for one mom. "Oh it breaks my heart,” said Linda Mulkey. “It’s such a dangerous habit."

Mulkey knows first hand about the consequences of a distracted driver.  She lost her only daughter in a car accident. 18 months ago, Lauren Mulkey just graduated from East High.  She died when Theodore Jorgensen ran a red light while fidgeting with his cell phone. "You don't get over losing a child,” said Mulkey. “You just learn to deal with the pain. It hurts everyday. My whole future is wiped out."

But Monday in court, Mulkey had the courage to forgive Jorgensen.  The 20-year old pleaded guilty to negligent homicide and faced sentencing.  But Mulkey asked the judge that she didn’t want him serving at prison time.  “It just didn’t make any sense,” she said.  Instead, she asked that Jorgensen be required to do community service.

In court, Jorgensen apologized to Mulkey. He turned to face her and said "I'm sorry for the pain I've caused."

“It took me a long time to reach this point,” she said. “But the more I saw him in court I realized he was a young scared man who had loving parents and I didn’t see any point in him sitting in jail.”

The judge agreed placing Jorgensen on probation and ordering him to do 500 hours of community service. “I’m hoping we can make joint appearances at schools,” she said. “His story and my story would make powerful messages to students.”

Some related posts:

November 11, 2008 in Victims' Rights At Sentencing | Permalink | Comments (4) | TrackBack

November 10, 2008

President-elect Obama already getting pressure to pardon the border agents

Regular readers may recall all the controversies stirred up the prosecution and sentencing of former border agents Ignacio Ramos and Jose Compean.  As detailed here, there has been a bipartisan call for their sentences to be commuted, and I am hoping (though not optimistic) that Ramos and Compean might get some sentencing justice from President George Bush as he packs up his desk at the White House.

Interestingly, as detailed in this local article, even 10 weeks before he can lay claim to the presidential clemency power, President-elect Barack Obama is getting public pressure to help out the border agents:

U.S. Rep. Tom Tancredo is asking President-Elect Barack Obama to pardon two border patrol agents who were convicted in the 2005 shooting an unarmed drug smuggler and trying to cover up the crime.

Ignacio Ramos and Jose Compean were arrested after the drug smuggler, Osvaldo Aldrete Davila, filed a complaint against them after the shooting in Fabens, Texas. Testimony revealed Davila was running away when he was shot in the buttocks. Davila was granted immunity from prosecution in exchange for agreeing to return to the United States to testify against the two Border Patrol agents.

In Monday's letter to the president-elect, Tancredo said, "These are the kind of men whose government failed and destroyed them -- all while they were serving a cause greater than themselves. These men deserve justice. I, and many other Members of Congress, have repeatedly called upon President Bush to exercise his power to pardon -- but he has not done so."...

Tancredo's letter to the president-elect added, "I respectfully urge you to use your power as President to take the immediate, appropriate and long overdue step of freeing them in your first two weeks in office, and see to it that agents Ramos and Compean spend President’s Day at home with their families -- instead of sitting in solitary confinement in a federal prison because they had the temerity to do their job."

Some prior posts about the Border Agents case:

November 10, 2008 in Clemency and Pardons | Permalink | Comments (10) | TrackBack

Is anyone (other than me) discussing the apparent insignificance of Heller?

I noticed over at The Volokh Conspiracy reports on a lecture and a symposium focused on the Heller Second Amendment case.  It seems that both events take as a given that Heller is an important decision.  But activity today at the Supreme Court has me wonderign again if the Heller decision means anything consequential at all. 

As previously noted here, the Justices heard oral argument today in US v. Hayes, which concerns the interpretation and reach of a federal gun law — 18 U.S.C. § 922(g)(9) — which criminalizes any and all gun possession by anyone previous convicted of the wrong kind of misdemeanor.  If Heller really articulated and safeguarded some kind of meaningful constitutional right under the Second Amendment, at least some of the argument in Hayes should have been about the scope of constitutional gun rights and/or whether the doctrine of constitutional doubt should limit the application of the gun possession crime set forth in § 922(g)(9).  However, a quick scan of the oral argument transcript in Hayes reveals that neither Heller nor the Second Amendment was mentioned at all.

As regular readers also know from this recent post, we have not yet seen one single lower federal court ruling that gives any meaning or force to the Second Amendment rights purportedly championed in Heller.  Indeed, in light of the failure of the Justices today and lower courts to even consider the import or impact of the Second Amendment in various settings, I am inclined to ask a legal variation on a classic philosophical riddle: "If a constitutional right falls in the courts and no judge pays it any attention, does the right make any difference?"

Some recent related Second Amendment posts:

November 10, 2008 in Second Amendment issues | Permalink | Comments (7) | TrackBack

Justices talk about victim impact evidence in cert. denial

As detailed in this SCOTUSblog post, Justices Stevens and Breyer commented on the Supreme Court's decision to deny cert in an interesting victim-impact case.  Here are the basics from the SCOTUSblog report:

The Supreme Court refused on Monday, over the protests of three Justices, to provide new guidance on the kinds of “victim impact” evidence that may be put before jurors to try to convince them to impose a death sentence. Specifically, the Court turned down two appeals seeking to challenge the use of music and video portrayals that may be highly emotional. It would have taken the votes of four Justices to grant review; three said the Court should have examined anew that kind of evidence....

“In the years since Payne was decided,” Stevens wrote Monday, “this Court has left state and federal courts unguided in their efforts to police the hazy boundaries between permissible victim impact evidence and its impermissible, ‘unduly prejudicial’ forms….Having decided to tolerate the introduction of evidence that puts a heavy thumb on the prosecutor’s side of the scale in death cases, the Court has a duty to consider what reasonable limits should be placed on its use.”

Justice Stephen G. Breyer said in dissent from the denial: “I understand the difficulty of drawing a line between what is, and is not, constitutionally admissible in this area. But examples can help elucidate constitutional guidelines.” The Court, he added, should have granted review of the two new cases “in an effort to do so.”

Justice David H. Souter said he, too, would have heard one of the cases; he did not write separately, however.... The cases denied review were Kelly v. California (07-11073) and Zamudio v. California (07-11425). While Justices Breyer and Stevens were in favor of hearing both, Justice Souter indicated he would grant only the Kelly petition.

Thanks to the folks at SCOTUSblog, Justice Stevens’ statement respecting the denial is available here, and Justice Breyer’s dissent from the denial is available here.

November 10, 2008 | Permalink | Comments (18) | TrackBack

How a new administration is likely to impact federal sentencing practice

It likely will be some time before anyone can predict how an Obama Administration might seek to alter federal sentencing law and policy.  (The naming of a new Attorney General and other key DOJ appointments may provide some signals, but the federal sentencing system is probably a low priority matter compared to other key crime and justice concerns.)  However, if past is prologue, we can already start to predict ways in which the incoming administration might impact federal sentencing practice.

During the Clinton Administration, as Frank Bowman and Michael Heise effectively document in their Quiet Rebellion articles (abstract here), there was a discernible tendency for front-line sentencing actors to exercise their discretion in favor of leniency in federal drug cases.  During the Bush Administration, according to data from the US Sentencing Commission, there was a discernible tendency for front-line sentencing actors to recommend and impose within-guideline sentences even more frequently in nearly all types of cases.  Though these ground-level sentencing trends partially reflected formal legal and policy developments, they also clearly reflected informal institutional and attitudinal realities that necessarily echo through the discretionary judgments made by thousands of federal prosecutors and judges dealing with tens of thousands of federal sentencing cases every year.

In other words, the institutional structures and attitudinal environment for prosecutors and judges established by a new administration will impact federal sentencing practice in ways that necessarily transcend (and may be more profound) than any formal changes to federal sentencing law and policy.  And, especially now that Booker and its progeny have further enhanced the discretionary power and responsibilities of front-line sentencing actors, I expect that we may start to see notable changes in the federal sentencing outcomes even before any tangible changes in federal sentencing law and policy.

November 10, 2008 in Who Sentences? | Permalink | Comments (7) | TrackBack

Debating alternatives north of the border

As detailed in these linked stories, two very different cases in Canada are prompting public and court debates over two notable sentencing alternatives:

November 10, 2008 in Criminal Sentences Alternatives | Permalink | Comments (0) | TrackBack

November 9, 2008

Monday madness at SCOTUS: ACCA, confrontation and a Second Amendment sleeper

As detailed in this helpful SCOTUSblog post (which includes links to more materials), the Supreme Court on Monday has its biggest criminal justice argument day since ... I don't know when.  Here are the particulars:

On Monday, the Court will release orders from the Justices’ private conference last Friday. We will provide a link to the orders list as soon as it is available. Following the release of orders, the Court will hear argument in:

  • Chambers v. United States (06-11206), on whether failure to report to prison is a “violent felony” under the Armed Career Criminals Act.
  • United States v. Hayes (07-608), on whether federal gun laws require a domestic relationship between an attacker and victim to qualify as a misdemeanor crime of “domestic violence.”
  • Melendez-Diaz v. Massachusetts (07-591), on whether the Confrontation Clause gives criminal defendants a right to cross-examine forensic analysts who prepare laboratory reports for use in their prosecution.

Because the Confrontation Clause case is the only one which directly raises a constitutional issue, I suspect it will get most of the media and academic attention.  But Chambers is a case which should be of great interest to federal sentencing practitioners, and Hayes is arguably the biggest sleeper case of the term because of a set of Second Amendment issues lurking deep inside a seemingly minor statutory interpretation case.

As detailed in this post, I have had my eye on Hayes as a potentially important Second Amendment case even since cert was granted back in March.  Of course, the subsequent Heller ruling finding an individual right to firearms in the home for self-protection added to the potential importance of Hayes

Interestingly, the merits and amicus briefs submitted in Hayes mostly dodge the Second Amendment, but that does not mean that the Justices will not bring up Heller-related issues during oral argument.  In other words, I am already looking forward to reading the Hayes oral argument transcript. 

Some recent related Second Amendment posts:

November 9, 2008 in Second Amendment issues | Permalink | Comments (3) | TrackBack

A challenge to severe Oregon sex offense sentences worth watching

Late last year, I blogged here and here about a fascinating and sad Oregon case involving a long mandatory prison term imposed on an adult female counselor convicted of unlawful heavy petting of her underage ward.  A helpful reader sent me this local news report on the oral argument in this case that took place last week before the Oregon Supreme Court.  Here are some details:

An attorney for a former employee of the Hillsboro Boy's and Girl's Club told the Oregon Supreme Court Tuesday that six-plus years in prison for touching her clothed breasts to the back of a 12-year-old boy's head amounted to cruel and unusual punishment.

A Washington County jury found Veronica Rodriguez, now 28, guilty of sex abuse in the first degree after Hillsboro investigators saw her breasts touch the boy's head while she ran her fingers through his hair at the club in 2005.

At sentencing, now-retired Judge Nancy Campbell said the circumstances only merited one year and four months in prison instead of the prescribed sentence of six years and three months required by 1994's voter-approved Measure 11.

Rodriguez and attorney Peter Garlan concede that Measure 11 is constitutional, but claim its application against Rodriguez violates Article 1, Section 16 — the proportionality clause of the Oregon Constitution.

Rodriguez's case is combined with another appeal from Linn County, where 36-year-old Darryl Buck was convicted of first-degree sex abuse for touching a 13-year-old girl's clothed buttocks several times during a fishing trip.  Garlan said the girl overreacted to Buck's using his hands to help her remain upright, and her "histrionics" had an effect on the jury.The judge agreed, and handed down a 17-month sentence, appropriate for the action, Garlan said.

The state's Court of Appeals rejected both judge's decisions, and said both defendants should serve another five years....

Department of Justice spokesperson Jake Weigler said Wednesday voters passed the measure to eliminate judges' discretion in a range of crimes. Clearly, Rodriguez and Buck fell within that range, he said. If Measure 11 is to be changed, it should be by the will of the voters or the legislature, he said.... 

Justice Robert D. Durham asked both attorneys if it was the role of the court to make an evaluation of offenders, when the law only mentions "the offense."  Should the court treat each offense as if it were a videotape of the act that turns on when the abuse begins and turns off when it ends? "Does that imply there should be no investigation into the actor?" Durham asked. And did that also imply there should be no consideration of whether a defendant lied on the stand, or lied to the police?

Though this article does not make clear whether the defendants in this case have also presented a federal constitutional challenges as well as the state constitutional challenge.  If they have and if the defendants do not get any relief from the state supreme court, these cases could possibly present interesting and important vehicles for raising an array of constitutional issues in the Supreme Court. 

Some related posts:

UPDATE:  I found the defendant's brief to the Oregon Supreme Court at this link.  It is hard to tell from a quick scan of the brief whether a formal Eighth Amendment claim is pressed by the brief.  But one aspect of the brief that jumped out was this notable paragraph under the argument summary:

Victim’s Position at Sentencing.  Several statutory and constitutional enactments over the past several decades guarantee the victim a voice at sentencing proceedings.  The victim’s mother accepts defendant as a member of the family and supported defendant throughout the course of the prosecution, through and including the sentencing hearing.

This paragraphs confirms my long-held belief that giving all victims a more formal voice and role at sentencing could and would often prove to be catalyst for more sensible sentencing outcomes and reforms.  In extreme cases, extreme victims will sometimes be eager for extreme sentences.  But I think in most cases, many victims are often eager for moderate sentences.

November 9, 2008 in Examples of "over-punishment" | Permalink | Comments (3) | TrackBack

"Citing Workload, Public Lawyers Reject New Cases"

The title of this post is the title of this front-page article appearing in today's New York Times.  Here is how it begins:

Public defenders’ offices in at least seven states are refusing to take on new cases or have sued to limit them, citing overwhelming workloads that they say undermine the constitutional right to counsel for the poor.

Public defenders are notoriously overworked, and their turnover is high and their pay low. But now, in the most open revolt by public defenders in memory, many of the government-appointed lawyers say that state budget cuts and rising caseloads have pushed them to the breaking point.

In September, a Florida judge ruled that the public defenders’ office in Miami-Dade County could refuse to represent many of those arrested on lesser felony charges so its lawyers could provide a better defense for other clients.  Over the last three years, the average number of felony cases handled by each lawyer in a year has climbed to close to 500, from 367, officials said, and caseloads for lawyers assigned to misdemeanor cases have risen to 2,225, from 1,380.

“Right now a lot of public defenders are starting to stand up and say, ‘No more: We can’t ethically handle this many cases,’” said David J. Carroll, director of research for the National Legal Aid and Defender Association.

The reality of under-funded and over-worked public defenders has been a persistent problem in all eras and at all levels of government.  I am pleased that the New York Times is bringing renewed attention to this issue when the mantra of change is still fresh in the public consciousness.

Of course, defense attorneys are hardly the only public lawyers who are under-funded and over-worked.  Compared to their private practice peers, many state and federal prosecutors and many state and federal civil lawyers and many state and federal judges also generally have too much to do and often are insufficiently compensated for their public service. 

I am hopeful (though not especially optimistic) that a new federal executive branch headed by a bunch of lawyers with a long commitment to public service might have a positive impact on the practical challenges surrounding public service lawyering.  But the structural and political realities that produce the kinds of problems highlighted by the Times article are not easily altered.

November 9, 2008 in Who Sentences? | Permalink | Comments (10) | TrackBack