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December 6, 2008

Book suggestion for the clemency (and holiday shopping) season

Ogletree While many defendants and their lawyers might be hoping for a clemency gift this holiday season, I can suggest a new book for any and everyone interested in reading some academic discussion of why the harshness of the legal system may often need to be leavened by acts of grace.  This new book (pictured here) is titled "When Law Fails: Making Sense of Miscarriages of Justice."

The book is edited by Professors Charles Ogletree and Austin Sarat, and I have authored an essay for the book.  My essay is titled "Extreme Punishment," and there I explain why I believe extreme punishments, and not just wrongful convictions, should be included in any accounting of miscarriages of justice.  The book is being published by NYU Press and more information about the book (and ordering information) can be accessed at this link.  Here is part of the website's description of the text:

The ten original essays in When Law Fails view wrongful convictions not as random mistakes but as organic outcomes of a misshaped larger system that is rife with faulty eyewitness identifications, false confessions, biased juries, and racial discrimination.  Distinguished legal thinkers Charles J. Ogletree, Jr., and Austin Sarat have assembled a stellar group of contributors who try to make sense of justice gone wrong and to answer urgent questions.

Are miscarriages of justice systemic or symptomatic, or are they mostly idiosyncratic?  What are the broader implications of justice gone awry for the ways we think about law?  Are there ways of reconceptualizing legal missteps that are particularly useful or illuminating?  These instructive essays both address the questions and point the way toward further discussion.

December 6, 2008 in Clemency and Pardons | Permalink | Comments (5) | TrackBack

Final execution of 2008 conducted in South Carolina

As detailed in this local story, South Carolina conducted an execution yesterday.  And this DPIC list of scheduled executions indicates that the next execution is not scheduled until January 14 in Texas.  Consequently, it appears that we can complete any end-of-year execution accounting for 2008.

I believe the total number of executions in the United States this year was 37.  As detailed by this DPIC yearly execution chart and this state-by-state execution list, the total number of executions in 2008 is the lowest since 1994, and Texas continues to be responsible for roughly half of all the executions nationwide.  In fact, over the last two years, Texas has conducted roughly 56% of executions: the Lone Star state has carried out 44 of the 79 executions in the United States during 2007 and 2008.

Of course, the constitutional litigation over lethal injection protocols, including the Supreme Court's work in Baze which prevented any executions between October 2007 and April 2008, in part explains the low number of total executions in recent years.  Nevertheless, given various predictions that there would be a rush of executions after Baze, the continuing decline in the number of executions annually remains noteworthy and significant. 

As I detailed in this recent post, during the second term of the Clinton Administration, the nation averaged more than 85 executions each year.  In surprising contrast, during the second term of the Bush Administration, the nation has averaged less than 50 executions each year.  I am not sure what these numbers and current trends might mean as we move into a new Administration, but I am sure that one could use this data to surprise folks in all those (infamous?) Georgetown cocktail parties.

Some recent related posts:

December 6, 2008 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

December 5, 2008

Back to reasonableness jurisprudence after all the football fun

Though OJ and Plaxico make it dangerously easy to start thinking I run a sports blog, I will close this crazy week by reporting on a report of the most notable court decision of the week.  Thanks to law.com, everyone can access here Mark Hamblett's report in the New York Law Journal about the important Cavera decision (discussed here yesterday). The NYLJ article, headlined "Second Circuit Approves Sentencing Bump for Urban Weapons Trafficking," starts this way:

The wide-ranging discretion in federal sentencing given to district judges by the U.S. Supreme Court allows a tougher prison term to a gun offender in New York City than in other parts of the country, the 2nd U.S. Circuit Court of Appeals said Thursday.

I have only had time to consume the majority opinion by (my former boss) Judge Guido Calabresi in Cavera.  Though I am biased to like every opinion a former boss writes, I do not think it is my bias showing when I describe the his Cavera opinion as "Molto Bene."  It is a great read and a must-read for everyone struggling with post-Booker sentencing and appellate review issues.

December 5, 2008 in Booker in the Circuits | Permalink | Comments (5) | TrackBack

If instant polling matters in criminal justice administration, Plaxico may be in trouble

I was amazed this afternoon to discover from this news report that a research group has already run a quick poll to assess Americans' perceptions of New York Giants' wide receiver Plaxico Burress' arrest and charges of illegal gun possession after he accidentally shot himself.  Here is the start of the news report:

A new national study among 300 football fans and non-fans revealed that the majority (75%) reported that Burress should be prosecuted to the fullest extent of the law for illegal gun possession, after viewing a news segment regarding the incident in a New York night club.

Notably, this study's question about the law apparently included the prospect of a mandatory 3.5 year sentencing term in state prison.  Here is the question in the survey according to the news report:

"Do you think that Burress should be prosecuted to the full extent of the law? (If convicted, Burress would serve a mandatory minimum of 3 1/2 years in prison)."

Related posts on the Plaxico Burress case:

December 5, 2008 in Celebrity sentencings | Permalink | Comments (3) | TrackBack

An account of the failure to do a proper accounting of the OJ sentence

This new blog post, fittingly titled "O.J. prison bids open at six, climb to 33," provides an effective account of the mess that the media is making in the reporting of OJ Simpson's sentencing today in Nevada. Here is how the great post starts and ends:

Today's sentencing of O.J. Simpson in his Las Vegas robbery case produced utter confusion over his sentence and parole eligibility. With multiple counts, consecutive and concurrent terms, deadly-weapon enhancements, and parole factors, reporters were all over the place in trying to pin it down....

This is embarrassing. It's not clear yet whose fault it is, or who's right. I'm guessing that the judge did little to explain the sentencing realities in English, and reporters rushing to distill the details made a mash of them. Let's hope the reports clarify in the coming hours and days.

As of this writing (5:45pm), I can find these diverse headlines describing the OJ sentencing outcome:

Got it, sports fans?

December 5, 2008 in Celebrity sentencings | Permalink | Comments (3) | TrackBack

OJ Simpson gets 16-year prison sentence (but will be parole eligible in six) ... UPDATE: or did he get more??

Here's the latest news on OJ from this Bloomberg report:

O.J. Simpson, the former Buffalo Bills football player found not guilty 13 years ago of murdering his ex-wife and her friend, was sentenced to 16 years in prison for robbing two sports memorabilia dealers at gunpoint.

Nevada State Court Judge Jackie Glass pronounced sentence at a hearing today in Las Vegas, where the hotel holdup took place 14 months ago.  Simpson, 61, was found guilty by a jury on Oct. 3 following a three-week trial. He had faced as much as life in prison for the crime....

Simpson was sentenced to 15 years for first degree kidnapping, the most serious count, and at least 12 additional months for use of a gun in the commission of the crime. He will remain in custody if he appeals, and may be eligible for parole in six years.

Candidly, this sentence feels a bit short to me in light of OJ's history of violence, but I am not fully conversant on either the applicable state law or all the pertinent sentencing facts.  In addition, I suspect that Judge Glass considered OJ's age and the reality that any sentence much longer would be functionally close to a life sentence.

If anyone is knowledgeable about Nevada parole practices, I would love to hear speculations about how long OJ is really likely to serve given that his time behind bars could be only six year or a full decade longer based on Judge Glass's sentencing work today.

UPDATE:  I cannot help but notice that google searching about OJ's sentencing today has driven more traffic to this site over the last 3 hours than I usually get in a full week.  Seems like I ought to use this as an excuse to encourage voting for this blog in the crime category of the ABA Top 100 list.

Another UPDATEI am intrigued any confused to discover that CNN's report right now on the OJ sentencing says "O.J. Simpson gets 15 years, could be out in 9."  And yet this AP report is headlined, "O.J. sentenced to as many as 33 years for robbery."  WTF??!!??!!

Leave it to OJ to make a bloody mess of sentencing!

December 5, 2008 in Celebrity sentencings | Permalink | Comments (22) | TrackBack

"Putting Public Safety First"

The title of this post is the title of this new report from Pew Public Safety Performance Project.  Here is the text of an e-mail I received today about this report: 

A new policy brief from the Pew Public Safety Performance Project highlights community corrections strategies that can help policy makers and practitioners improve public safety and make better use of scarce public funds.  Putting Public Safety First: 13 Strategies for Successful Supervision and Reentry is part of an ongoing series of policy briefs published by The Pew Center on the States.  The 13 strategies outlined in this brief were the consensus findings from two meetings of national experts held over the past year by the Urban Institute, in collaboration with the National Institute of Corrections (NIC) and the JEHT Foundation.

This briefing is a companion piece to a longer report produced by the Urban Institute with the support of the JEHT Foundation, NIC and the Bureau of Justice Assistance.  The report includes examples from the field and describes each of the 13 strategies in more detail....

We hope you can use this policy brief to help make the case for more cost-effective corrections in your work with policy makers and managers.

December 5, 2008 in Reentry and community supervision | Permalink | Comments (0) | TrackBack

DC Circuit produces crisp split on ex post issues after Booker (finally!!)

In my view, one of the most interesting and amazingly underexamined post-Booker issue concerns whether or not the conversion of the guidelines to advisory status changed the settled pre-Booker determination that ex post facto doctrine precluded the application of new harsher guidelines to old crimes.  Before today, the only circuit court to seriously engage this (arguably very important) issue was the Seventh Circuit, which held a couple of years ago held in US v. Demaree, 459 F.3d 791 (7th Cir. 2006), that Booker alters the ex post facto analysis.

Though not subject to lots of circuit analysis, Demaree was largely an outlier because most lower courts and most litigants and most probation offices proceeded after Booker as if the old ex postrules still applied.  Indeed, the Justice Department's official position was that Demaree was wrongly decided and that the guidelines applicable at the time of the crime (not the latest guidelines) were to control at sentence.  (Interestingly, I have heard reports that the Justice Department's position on this ex post facto issue has changed since the Supreme Court's ruling in Irizarry, but I am not sure if this is official policy.)

Now, thanks to a ruling today by the DC Circuit in US v. Turner, No. 07-3107 (DC Cir. Dec. 5, 2008) (available here), this fascinating issue is now the subject of a crisp and clear circuit split.  In Turner, the majority opinion explains why it thinks the Seventh Circuit's work in Demaree is washed up in light of controlling Supreme Court law:

The proper approach is therefore to conduct an “as applied” constitutional analysis, see Miller, 482 U.S. at 435, not the sort of facial analysis conducted in Demaree.... Turner did not have to show definitively that he would have received a lesser sentence had the district court used the 2000 Guidelines. See Miller, 482 U.S. at 432.  It is enough that using the 2006 Guidelines created a substantial risk that Turner’s sentence was more severe, thus resulting in a violation of the Ex Post Facto Clause. See Miller, 482 U.S. at 433.

I somewhat doubt that the Justice Department will be inclined to seek cert in this case, so Turnermay not become the case in which the Supreme Court has to grapple with these issues.  But I am excited to see my favorite post-Booker legal conundrum getting some attention, and I suspect it will be only a matter of time before SCOTUS will have to take up this issue.

December 5, 2008 in Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (3) | TrackBack

Should plea agreements be available to the public?

I just noticed via SSRN this new student note by David Snyder in the Fordham Urban Law Journal.  The notes is titled "Nonparty Remote Electronic Access to Plea Agreements in the Second Circuit," and here is the abstract:

The advent of electronic access to case files gives rise to security concerns previously unrealized in the era of paper records.  The emergence of a "cottage industry" of websites that republishes court filings and plea agreements online for the purposes of witness intimidation, retaliation, and harassment poses a grave risk of harm to cooperating witnesses and defendants.  The benefits associated with the remote electronic availability and dissemination of judicial documents may thus come at a considerable cost.

This Note describes the options that district courts within the Second Circuit could implement sua sponte to mitigate these concerns. For example, courts may adopt a local rule or protocol that curtails electronic access to plea agreements in response to the risks effectuated by PACER. This medium-based approach suffers from a number of practical and legal deficiencies, including the violation of Federal Rule of Criminal Procedure 49.1, which does not permit categorical protective orders. Alternatively, rather than modifying access rights depending upon the medium through which access is sought, courts may seek to prohibit all access to sensitive filings through categorical sealing measures.  This approach is unworkable in the Second Circuit, which requires case-by-case determinations with respect to motions to seal.  Finally, courts may choose to reconsider which documents ought to be maintained in the public record.  This Note concludes that the last option is preferable due to its ability to withstand scrutiny under both the access doctrine and Federal Rule of Criminal Procedure 49.1.

The Note also includes a comprehensive survey of the electronic access policies of the federal district courts.

December 5, 2008 in Procedure and Proof at Sentencing | Permalink | Comments (10) | TrackBack

Some deep retributivist thoughts for punishment theories

With so much real-world news of note, I have not done a post on punishment theory in far too long.  Fortunately, Michael Cahill is raising some deep thoughts on this topic while guest-blogging over at Prawfs.  Anyone eager to do some theory thinking should be sure to check out these posts:

December 5, 2008 in Purposes of Punishment and Sentencing | Permalink | Comments (0) | TrackBack

December 4, 2008

"How much time will OJ the killer get? thanks."

The title of this post is the full text of an e-mail I received this afternoon today, from some calling himself "anonymous tip" and excited about tomorrow's scheduled state sentencing of OJ Simpson in Nevada.  Any thoughts dear readers?

For some background, consider this AP article, headlined "OJ judge known for stern lectures, stiff sentences."  Or check out this ESPN piece, headlined "OJ Simpson sentence likely to be at least 18 years."  Or consider this article, which notes that the Goldman family is going to be in the audience:

The Goldman family plans to attend Friday's hearing but doesn't meet the state statutes to give an impact statement in court. In a phone interview, Ron Goldman's sister, Kim, said the family has waited a long time to see O.J. behind bars.  "I hope he leads a miserable existence and I hope it's for a very long time.  The less time he spends out on the street lessens the anxiety that we have."

Geez with OJ and Plaxico making so much sentencing news, I might soon be able to call myself a sports journalist just from doing this blog.

Some related posts on OJ's sentencing:

December 4, 2008 in Celebrity sentencings | Permalink | Comments (1) | TrackBack

Plaxico as teaching tool: omission liability, complicity, prosecutorial discretion . . .

As all my students know too well, I love high-profile criminal cases because they provide great teaching moments (and perhaps great exam hypotheticals).  And, thanks to more legal developments today, the Plaxico Burress case just keeps on giving.

First, consider this new story from Newsday, headlined "Doctor who treated Plaxico suspended, facing charges."  Here are the highlights:

If the doctor at the center of the Plaxico Burress nightclub shooting is prosecuted for not reporting the gunshot wound to police, she will be just the fourth person charged with such an offense since 2000 in New York State, according to authorities.

Dr. Josyann Abisaab has emerged as a sidebar to the case in which Burress accidentally shot himself in the right thigh inside the midtown nightclub Latin Quarter early Saturday morning.... Abisaab, 44, has privileges at New York Presbyterian Hospital/Weill Cornell Medical Center, where, according to police sources, she treated Burress early Saturday.

Abisaab, however, did not call police, as state law requires, and could be charged with a Class A misdemeanor and spend a year in jail. Abisaab on Monday was suspended by the hospital.

Second, check out this new FoxSports piece, headlined "Report: Pierce will testify before grand jury."  Here is how it starts:

Embattled Giants linebacker Antonio Pierce will play ball — with prosecutors.  The linebacker will cooperate and testify before a Manhattan grand jury about how teammate Plaxico Burress clumsily shot himself in the leg at a nightclub, The New York Post has learned.

Pierce's testimony should guarantee an indictment against Super Bowl hero Burress for felony weapon possession — but at the same time, give Pierce a pass on charges of hiding the wide receiver's .40-caliber Glock pistol after the shooting.

Who knew that Plaxico's self-inflicted wound on Friday would end up being an early holiday present for law professors like me eager to come up with good new ideas when writing my final exam?

Related posts on the Plaxico Burress case:

December 4, 2008 in Celebrity sentencings | Permalink | Comments (0) | TrackBack

En banc Second Circuit hands down Cavera, the "local conditions" sentencing case

Thanks to a helpful reader, I just discovered that the Second Circuit today handed down its en banc opinion in US v. Cavera, No. 05-4591 (2d Cir. Dec. 4, 2008) (available here).  Regular readers may recall this case, which has been confounding the Second Circuit for quite some time and was heard en banc way back in March. 

The case raises the question of whether a federal judge can reasonably justify an above-guideline sentence based on the local conditions (basics blogged here).  And because it involves a gun crime sentencing in the New York area, the opinion might intrigue Mayor Bloomberg and Plaxico Burress and a host of others beyond just hard-core federal sentencing nuts.

The full decision runs 77 pages (including what appear to be a total of five separate opinions), and I will surely need a lot of time to consume its grandeur and assess what it means for sentencing in the Second Circuit and elsewhere.  But I am certain this is today's must read for everyone working in the federal sentencing vineyards.

December 4, 2008 in Booker in the Circuits | Permalink | Comments (1) | TrackBack

Pardons, politics, race and justice: why Holder should come out swinging

President-elect Obama's selection of Eric Holder to be the next U.S. Attorney General is generating more buzz this morning, with this new piece at Politico, headlined "Holder pardon makes Dems squirm," and this new editorial at the Wall Street Journal, titled "Eric Holder's Politics: His years at Clinton Justice don't inspire confidence."  Both pieces effectively highlight how the ugly pardons of the Clinton era provide a basis for questioning Holder's ability to be unduly influenced by political considerations. 

There is, of course, some irony in folks attacking Holder primarily for political reasons by questioning if he is too much influenced by politics reasons.  But I am never troubled by a political system acting politically as long as there is transparency.  What is starting to trouble me, however, is the prospect that the public debate over our nation's first African-American AG nominee is going to focus on a few dumb decisions by his boss roughly a decade ago.

As I noted in this prior post, the import and impact of racial issues in all aspects of the work of the federal Justice Department (both criminal and civil) should not be overlooked.  For this reason and many others, the potential appointment of the first African-American Attorney General is noteworthy and perhaps quite consequential.  Though lots of (disproportionately white and rich) Senators apparently want to talk with Holder about pardons, war on terror and other political issues, I would like to see Holder come out swinging in the confirmation debate by raising race and justice issues right from the start. 

Notably, an effort to put Senators back on their heels during a confirmation hearing by speaking about racial issues worked quite well for Justice Clarence Thomas.  It would be quite interesting if Holder had the guts to take a page from the Thomas playbook.

Some recent Holder as AG posts:

December 4, 2008 in Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6) | TrackBack

December 3, 2008

Starting to make the Second Amendment case for Plaxico Buress

I am very pleased to discover gun rights guru David Kopel starting to make a Heller-based Second Amendment argument for Plaxico Burress in this Wall Street Journal opinion piece.  The piece is titled "Free Plaxico Burress: New York City's gun law is unconstitutional," and here are snippets:

New York Giants star receiver Plaxico Burress is facing a mandatory 3½ years in prison and the end of his football career. His crime? Not having a license, which New York City never would have issued him, for the exercise of his constitutional right to bear arms....

Mr. Burress's behavior was bad. However, Mr. Burress is not facing prosecution for carelessness, but simply for carrying a weapon. This is unjust and perhaps unconstitutional....

The Second Amendment might not require New Jersey or New York City to issue as liberally as Connecticut does. But with a population of several million and only a few thousand (consisting mainly of politicians, retired police and celebrities) able to get permits, New York City's licensing process is almost certainly unconstitutional on a number of grounds, including sheer arbitrariness.

Some commentators contend that Plaxico Burress should have hired bodyguards, instead of carrying a gun himself. Mr. Burress might now agree. But people who aren't as wealthy as he is also deserve to be safe, and they don't have the money for bodyguards. New York City needs to regularize its carry permit system so that law-abiding people can protect themselves, especially if their circumstances (such as being a witness to a gang crime) place them at heightened risk.

The Burress case also shows why mandatory sentences are a bad idea. He was careless but had no malign intent. Legislators and mayors like to appear tough by pushing through such draconian laws. Yet the victims are people like Mr. Burress whose conduct may have been improper, but who do not deserve the same sentences meted out to robbers and burglars.

Related posts on the Plaxico Burress case:

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

Notable terrorism resentencing results in same sentence

As detailed in reports from the AP and from the Seattle Post-Intelligencer, the so-called "millenium bomber" has been resentenced to the same 22-year prison term he was given before the original sentence had been reversed by the Ninth Circuit.  Here are the notable basics:

A federal judge in Seattle rejected a life sentence Wednesday for Ahmed Ressam, whose terrorist plot to bomb Los Angeles International Airport during the millennium holiday rush was thwarted in 1999 by an alert customs officer in Port Angeles.

Federal prosecutors sought life because Ressam has stopped cooperating with investigators.  But U.S. District Judge John Coughenour reinstated a 22-year sentence, saying he could not ignore Ressam's cooperation in the first years of his incarceration.

An appeals court sent the case back to Coughenour for resentencing because of his failure in 2005 to clearly enumerate how he had calculated Ressam's sentence under federal guidelines.

In a courthouse surrounded by deputy U.S. marshals wearing body armor and carrying M-4 assault rifles, Ressam -- who acted as his own attorney -- was defiant.  Ressam retracted all previous statements made at his trial and those used against another alleged terrorist.  He said those things when he was mentally ill in the wake of his traumatic arrest, imprisonment and trial, Ressam told the court.  Ressam invited the judge to sentence him to life.

December 3, 2008 | Permalink | Comments (0) | TrackBack

Should we end a failed expensive war (the war or drugs) during these hard economic times?

I have been thinking a lot lately about how the tough economic times are likely to impact crime and punishment realities. I fear that crime rates will inevitably rise because of rising unemployment and reductions in social services. But punishment rates, at least in terms of incarceration rates, cannot possibly also rise because most states are already unable to pay for all their tough-on-crime punishment practices.

Against this backdrop and all the talk of the Great Depression, it is notable that this Friday we celebrate the 75th anniversary of the 21st Amendment repealing alcohol prohibition.  (See, e.g., great BLT post here).  It is especially notable because a group of cops, judges and prosecutors who want to legalize drugs issued a report this week saying that ending the "war on drugs" will boost our economy by at least $76 billion a year and will put dangerous gangs and cartels out of business.

The main group behind all this call for a new repeal of old drug prohibitions is Law Enforcement Against Prohibition.  Here's what's up on their site today:

December is the 75th anniversary of when America's leaders had the good sense to end alcohol prohibition. Today, we have another ineffective, harmful and expensive prohibition, the "war on drugs." LEAP has made it easy for you to take action and let your legislators know that we can't afford prohibition in these tough economic times. Visit www.WeCanDoItAgain.net for more information.

December 3, 2008 in Drug Offense Sentencing | Permalink | Comments (17) | TrackBack

Another notable CVRA mandamus petition to watch

I am pleased to see from this post at The Volokh Conspiracy that Professor Paul Cassell is continuing his important efforts to get district and circuit courts to give serious effect to the federal Crime Victims' Rights Act. Here is a snippet of Paul's account of his latest CVRA doings:

Yesterday I filed a mandamus petition in the Eleventh Circuit, asking that borrowers who were overcharged on loans be recognized as "crime victims" under the federal Crime Victims' Rights Act. The petition seeks restitution and other rights in the criminal justice process.  The petition challenges a ruling by U.S. District Judge Elizabeth A. Kovachevich of the Middle District of Florida on November 21, 2008, that borrowers on loans from Coast Bank were not “crime victims” of Phillip Coon’s criminal conspiracy because they were not specifically listed in the criminal charges against him.  The petition contends that, because the borrowers suffered financial losses from the fraud, they are “victims” entitled to the protections of the federal Crime Victim’s Rights Act. The petition could produce the first appellate court decision deciding who is a “victim” under the law. The petition has important implications for the protection of victims’ rights in the prosecution of federal financial crimes.

The lengthy petition is available at this link.  Paul indicates that his "petition asks for a decision from the Eleventh Circuit by December 16, 2008."  I find this peculiar, because the CVRA (18 U.S.C. 3771) expressly provides that a circuit court receiving such a mandamus petition "shall take up and decide such application forthwith within 72 hours after the petition has been filed." 18 U.S.C. 3771(d)(3).

I do not see any basis in the CVRA or know of any authority for extending this statutory timeline for a circuit decision even if the petitioner is willing to wait longer for a decision.  By my reading, the Eleventh Circuit appears to be statutorily obliged to rule on this mandamus petition before the end of this week. 

Of course, this statutory requirement might be violated by the Eleventh Circuit (as it was in the leading CVRA case, the Kenna case from the Ninth Circuit).  But I find it curious and somewhat ironic that Paul's effort to seek rights under the CVRA apparently invites the Eleventh Circuit to violate the terms of the CVRA.

December 3, 2008 in Victims' Rights At Sentencing | Permalink | Comments (2) | TrackBack

"Main Threat to Burress Is a Sentencing Law"

03weapon_600b Today's must-read is this terrific piece by Michael Schmidt in the New York Times that provides some of the back story on the mandatory minimum sentencing law that may make it very hard for Plaxico Burress to avoid jail time in the state pen for his (seemingly minor?) gun possession crime.  Here are snippets from a piece that all sentencing fans should read in full:

[P]erhaps more important than the question of whether Burress ever plays for the Giants again is the question of whether his future will include time in prison. [L]egislation ... signed into law in November 2006 by then-Governor George E. Pataki ... eliminated a provision that gave judges the option of not imposing jail time on people found guilty of illegally possessing a loaded firearm.

Instead, the three-and-a-half year minimum sentence was established. As a result, legal experts said Tuesday, Burress may have little wiggle room as he tries to avoid prison time. “Even if he pleads down, he can only plead down one count and he would still face a minimum of two years in prison,” said Robert C. Gottlieb, a New York-based criminal defense lawyer and a former prosecutor in the Manhattan district attorney’s office. “The other wiggle room is that he could try and prevent the district attorney’s office from charging him with this crime and charge him with a lesser crime.”

In fact, John M. Caher, a spokesman for the New York State Division of Criminal Justice Services, said that fewer than 10 percent of the people in New York City who were charged with criminal possession of a weapon — the charge Burress is facing — were convicted of that charge and that many ended up being convicted of a lesser charge.

However, Gottlieb noted that the public attention made it unlikely that prosecutors would accept a lesser charge. Another option, some experts said, would be for Burress to provide authorities with information that would lead them to prosecute others, although that seems unlikely considering the narrow circumstances of his case.

As [Burress's lawyer Benjamin] Brafman begins to plot his legal strategy, he cannot help but think back to that argument [he had with an NYC lawyer] nearly two years ago. “The point I made then, and I will continue to make, is that laws involving criminal justice that do not have exceptions for extraordinary circumstances are inappropriate in a democracy where we pride ourselves on fair play,” Brafman said in a telephone interview Tuesday.... 

On Monday, Bloomberg drew attention to the issue when he sharply criticized Burress and said that the authorities should prosecute him to the fullest extent of the law.  Brafman said that Bloomberg’s comments damaged Burress’s legal standing.  “When you have the mayor of New York demanding the maximum sentence in a case which has just begun and nobody has been convicted, it certainly doesn’t help,” Brafman said. “Mr. Bloomberg may have cost my client his job and cost him an ability to get a fair trial.” 

This article confirms some of what I expressed in my first post on the Burress case  — namely that Mayor Bloomberg's comments on Monday may ensure that Plaxico may soon become a poster-child and a great test case for groups like Families Against Mandatory Minimums that have long argued about the unfairness of mandatory minimum sentencing terms (especially for first offenders).

The only important point missing from the NYTimes article (and from Brafman early efforts to develop pro-Burress public sentiments) is the Heller Second Amendment issue I often champion.  As I noted in my prior post, if the Second Amendment is applied to the states after Heller (which seems very likely) and if Burress says he carries a gun for personal self-defense (which seems very plausible), anyone with a serious commitment to the right of persons to possess a gun for self-defense (like those at the NRA) should be very troubled by the notion that Burress is facing years in prison for merely possessing a gun.

December 3, 2008 in Celebrity sentencings, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Second Amendment issues | Permalink | Comments (0) | TrackBack

What's the early line on the upcoming OJ sentencing?

According to this AP article, which is headlined "Lawyer: OJ, co-defendant face 18 years," it looks like Orenthal James Simpson is looking at a sentence of at least six years for his state convictions.  Here are the sentencing basics from the article:

O.J. Simpson and a co-defendant face a recommended 18 years in prison in the gunpoint robbery and kidnapping of two sports memorabilia dealers, according to defense briefs and Simpson's lawyer. Defense lawyers for the former football star and co-defendant Clarence "C.J" Stewart filed briefs Tuesday asking Clark County District Court Judge Jackie Glass for minimum prison terms when she sentences the two men Friday.

"If the judge chooses minimum sentences but runs them consecutively it would total 18 years," Simpson lawyer Gabriel Grasso said after filing an 11-page defense brief in response to a state Parole and Probation Division sentencing recommendation. "We would like the judge to take our recommendation to heart and sentence (Simpson) to the minimum, six years," Grasso said.

Glass is not bound by the report and could sentence each of the men to the maximum term of life in prison. Stewart's lawyer, Brent Bryson, also submitted a brief Tuesday asking the judge to disregard the state's sentencing recommendation. "Stewart submits that given his minimal participation in the events ... as well as his lack of any prior criminal convictions, that (he) be sentenced to the minimum," Stewart's five-page brief said....

A jury on Oct. 3 convicted Simpson and Stewart of all 12 charges against them in the Sept. 13, 2007, confrontation with the two sports memorabilia dealers at a Las Vegas casino hotel room.

Simpson maintained he went to the room to retrieve personal items, family photos and sports mementos that had been stolen from him years earlier. "Justice requires this court impose the very minimum sentence possible in this case," Grasso wrote in Simpson's brief. "Simpson was convicted of crimes that revolve around his belief that the property he was recovering was his and at some point was taken from him."... 

Prosecutors did not submit a sentencing memorandum to the court. Dan Kulin, spokesman for District Attorney David Roger, said prosecutors in Las Vegas usually rely on parole and probation findings.

As I have noted in prior posts, it would seem to be entirely constitutional for Judge Jackie Glass to expressly determine that OJ Simpson is double murderer and to sentencing him to a longer term based on that finding despite his high-profile acquittals years ago. 

Indeed, given that a civil jury formally concluded that OJ was responsible for two wrongful deaths, I think the prosecution here could make a very strong argument that OJ should be considered a repeat offender.  I do not know Nevada sentencing law at all, so I suppose it is possible that there are some state laws and rulings that might limit Judge Glass's sentencing authority.  But, to repeat, current federal constitutional jurisprudence would seem to make largely irrelevant OJ's prior acquittals at this new sentencing.

I would think the recommended 18 years in prison is a sensible over/under for anyone wanting to make book on this sentencing outcome.  If that's the line, I'd probably take the over, but maybe that's just because I have never been a Bills fan.

Some related posts on OJ's sentencing and acquitted conduct enhancements:

December 3, 2008 in Celebrity sentencings | Permalink | Comments (0) | TrackBack