February 16, 2008
Still more on lying, Clemens, Bonds and equal justice
This New York Times commentary, headlined "Justice Will Be Served Only if Clemens Isn’t Given a Pass," echoes points I have been making about the need for equal steroid justice. Here are excerpts:
What we all know now is that someone was lying. And at this juncture, that someone would seem to be Clemens. We’re not talking about razor-thin, “I thought it was flaxseed oil” types of lies before a federal grand jury, which is what Barry Bonds stands accused of. We’re talking about potentially whopping lies before Congress, before the world....
If there is fair and equal justice under the law, Clemens should become the next super athlete, after Marion Jones and Bonds, to be pursued by [government agents] to the end of the earth. Or at least to a room containing a federal grand jury.
Bonds was ultimately indicted on four counts of perjury and one count of obstruction of justice for telling a federal grand jury in 2003 that he never knowingly took illegal performance-enhancing drugs. The public was not privy to Bonds’s flaxseed performance before the grand jury. If we had been, maybe we would have come away with the same “Are you kidding me?” reaction that many had to Clemens’s testimony on Wednesday, particularly when he said that his friend and former teammate, Andy Pettitte, had “misremembered” previous conversations between the two men. The flaxseed oil comments became the basis for attacking Bonds, for belittling his historic home run chase of Henry Aaron. Now we are confronted by a performance by Clemens that makes Bonds’s flaxseed story seem almost naïve.
But none of this means a thing unless the Department of Justice investigates Clemens. On the surface, there seems to be little choice but to do so. What Jones and now Bonds and Clemens have in common is not accusations of illegal use of steroids but of lying to representatives of the federal government: Jones to federal agents, Bonds to a grand jury and Clemens to members of Congress.
Jones was pursued and disgraced and finally sentenced because she lied; Bonds was pursued and faces a trial because the government believes he lied. Clemens, by virtue of his performance Wednesday, has to be a prime candidate for the same treatment....
[There is a] potential racial divide over punishment, with Jones unceremoniously carted away, with Bonds up next, and with Clemens, a bigger-than-life Texan with some bigger-than-life friends, hoping to emerge unscathed by the law. Earl Ward, an African-American who is one of Brian McNamee’s lawyers, directly addressed the issue of color Thursday, noting that “several people of color have been caught up in the steroids scandal” and that if Clemens is left uninvestigated, “it would send the entirely wrong message to African-Americans.” Ward is a paid adversary of Clemens, of course, but what he is saying, many others are thinking.
Some recent related posts:
February 15, 2008
Different rhetoric about individual gun rights
This AP reports that "Barack Obama said Friday that the country must do 'whatever it takes' to eradicate gun violence following a campus shooting in his home state, but he believes in an individual's right to bear arms": "I think there is an individual right to bear arms, but it's subject to commonsense regulation" like background checks, he said during a news conference.
Meanwhile, I am pleased to report that at least one lawyer has built on some of my musings about the potential for Second Amendment arguments in felon-in-possession cases. This lawyer's motion to dismiss such a case based on the Second Amendment can be downloaded below, and here are snippets:
The rights contained in the Second Amendment are “preferred rights” because, first and foremost, they are inextricably intertwined with the right of self-defense....
The statute, under which the Defendant is now charged, is 18 U.S.C. Sec. 922(g)(1) is a broad and sweeping statute. Arguably, it punishes the status of being a felon; see, Robinson v. California, 370 U.S. 660 (1962)(held, it is a denial of due process to criminalize a person’s status). Inarguably, the statute makes no distinction between violent crimes and non-violent crimes or street crimes and white collar crimes. The Defendant, in the case at bar, finds himself precisely in the same classification as Michael Millikin, Michael Vick, Martha Stewart, I. Lewis “Scooter” Libby, Jr., Gregory Reyes, William Lerach, and a whole host of others...
Measured by Second Amendment principles grounded in a fundamental, individual right to keep and bear arms, in the sanctity of one’s own home, for purposes of self-defense, the statute under which the Defendant has been charged is overbroad and fatally flawed. Count IV of the Indictment should be dismissed.
Notable new resource for those working on crack resentencing
The Center for Community Alternatives (CCA), which seeks to "promote reintegrative justice and a reduced reliance on incarceration through advocacy, services and public policy development," now has on its website an interesting new resource for federal defense attorneys. This new document is titled "Entitled The Importance of an Individualized Assessment: Making the Most of Resentencing Under the Amended Crack Cocaine Guidelines," and it suggests resentencing strategies and issues. The document covers a lot of federal sentencing ground, and here is how it revs up:
Combined, Gall, Kimbrough, and the Sentencing Commission’s decision provide a wonderful opportunity for those convicted of a federal crack cocaine offense to receive significant reductions in their sentences. But the Commission has sought, in several ways, to limit the sentence reductions available to individuals convicted of a crack cocaine offense. A full understanding of the possibility available to such individuals, and the problems with the Commission’s attempted limitations, requires some discussion of Gall and Kimbrough.
February 15, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (1) | TrackBack
Weekend reading from SSRN
A bunch of new pieces on SSRN seem worthy of a weekend look. Here are the titles and links:
- Lady Madonna, Children at Your Feet: The Criminal Justice System's Romanticization of the Parent-Child Relationship by Jennifer M. Collins
- Experience and Expression: Conversations about Crime, Place and Community by Emily Gray, Stephen Farrall & Jonathan Jackson
- Adverse Employment Consequences Triggered by Criminal Convictions: Recent Cases Interpret State Statutes Prohibiting Discrimination by Christine Neylon & Jonathan J. Darrow
- Unequal Justice by William J. Stuntz
Off to Penn to talk about the Eighth Amendment
As highlighed in this official annoucnement, I am scheduled to speak this afternoon at the start of a very interesting symposium at University of Pennsylvania Law School. The symposium is titled "Cruel and Unusual Punishment: Litigating Under the Eighth Amendment," and I hope that I will be able to talk more about this event in a series of posts over the next two days. To start, however, check out this great line-up of participants:
- Elizabeth Alexander (ACLU National Prison Project)
- Stephen Bright (Southern Center for Human Rights)
- Deborah Denno (Fordham University)
- Sharon Dolovich (UCLA and Harvard University)
- Richard Frase (University of Minnesota)
- Sarah Hart (Philadelphia District Attorney’s Office)
- Mark Kappelhoff (United States Department of Justice-Civil Rights Division)
- Youngjae Lee (Fordham University)
- Jules Lobel (University of Pittsburgh)
- David Rudovsky (University of Pennsylvania)
- Margo Schlanger (Washington University of St. Louis)
- Carol Steiker (Harvard University)
- Jordi Steiker (University of Texas-Austin)
PM UPDATE: I have been treated so very well by all the Penn folks, and I got lots of insights from my co-panelists (Profs. Frase and Lee) this afternoon.
Arizona Supeme Court extends jury trial rights to misdemeanors leading to sex offender registration
In a very interesting opinion that covers a lot of very interesting modern criminal justice issues, the Arizona Supreme Court yesterday in Fushek v. State, No. CV-07-0251-PR (Ariz. Feb. 15, 2008), unanimously held that the Arizona state constitution requires a jury trial for misdemeanor charges that could lead to sex offender registration. Here is the opinion's key conclusion:
[W]e conclude that the potential of sex offender registration reflects a legislative determination that Fushek has been charged with serious crimes. As the Supreme Court noted in Blanton, “[t]he judiciary should not substitute its judgment as to seriousness for that of a legislature, which is far better equipped to perform the task.” 489 U.S. at 541-42.... We defer to the legislature’s determination that misdemeanor crimes involving sexual motivation are serious offenses and hold that when a special allegation of sexual motivation exposes a defendant to the possibility of sex offender registration, Article 2, Section 24 of our Constitution entitles the defendant to a trial by jury.
When will the various Clinton clemency scandals become a campaign issue?
The suggestion of a posible presidential pardon for Roger Clemens (basics here) has yet again caused justice, politics and clemency power to come into focus in a high-profile setting. However, this long opinion piece from yesterday's Wall Street Journal, titled "The Clintons' Terror Pardons," has me wondering why the many ugly stories surrounding Bill Clinton's troublesome clemency record has not (yet) become a big campaign issue. Here are snippets from the opinion piece, which is quite potent:
While the pardon scandals that marked Bill and Hillary Clinton's final days in office are remembered as transactions involving cronies, criminals and campaign contributors, the FALN clemencies of 1999 should be remembered in the context of the increasing threat of domestic and transnational terrorism that was ramping up during the Clinton years of alleged peace and prosperity....
It was within that context that the FBI gave its position on the FALN clemencies -- which the White House succeeded in keeping out of news coverage but ultimately failed to suppress -- stating that "the release of these individuals will psychologically and operationally enhance the ongoing violent and criminal activities of terrorist groups, not only in Puerto Rico, but throughout the world." The White House spun the clemencies as a sign of the president's universal commitment to "peace and reconciliation" just one year after Osama bin Laden told his followers that the United States is a "paper tiger" that can be attacked with impunity.
It would be a mistake to dismiss as "old news" the story of how and why these terrorists were released in light of the fact that it took place during the precise period when Bill Clinton now claims he was avidly engaged, even "obsessed," with efforts to protect the public from clandestine terrorist attacks. If Bill and Hillary Clinton were willing to pander to the demands of local Hispanic politicians and leftist human-rights activists defending bomb-makers convicted of seditious conspiracy, how might they stand up to pressure from other interest groups working in less obvious ways against U.S. interests in a post-9/11 world?...
The FALN clemencies provide a disturbing example of how the abuse or misuse of presidential prerogative, under the guise of policy, can be put in service of the personal and private activities of the president's spouse -- and beyond the reach of meaningful congressional oversight.
Sentencing, a love story
Who says sentencings cannot be romantic? As highlighted by this local story, headlined "First the Wedding, Then Years in Prison," at least one lucky couple was able to arrange for both a sentencing and a wedding to fall on Valentine's Day:
A bittersweet story of love and the law developed Thursday when Cupid made a St. Valentine’s Day visit to an Ohio County courtroom. Circuit Judge James Mazzone officiated at the wedding of Misty Johnson and Kevin Felder just moments after Mazzone sentenced Felder to five to 18 years in prison for robbery.
Asked to comment on the unfortunate circumstances surround the marriage, Felder said, “It is a decision between the two of us. I am sorry for what I did, and I want to be a better man when I come home.” After saying goodbye to her new husband as he was escorted from the courtroom, the bride tearfully offered her assessment of the situation. “I love him that much,” she said. “That’s all I can say.”
Felder, dressed in an orange jail jumpsuit rather than a tuxedo, asked Mazzone if he could have his handcuffs removed during the wedding ceremony. The judge declined. “I’m sorry, but I can’t allow that,” Mazzone said. “You are in custody.” Felder was escorted out of the courtroom moments after the couple exchanged wedding vows.
During the criminal hearing, Felder pleaded guilty to one count of second-degree robbery. Assistant Ohio County Prosecutor Steven Vogrin said Felder robbed the Wheeling Island Convenient store on Sept. 5.... During the sentencing phase of the hearing, Vogrin said Felder committed the robbery while he was on probation for a July 20 domestic violence offense involving Johnson, his then-girlfriend. Vogrin said as part of the plea agreement, the state would not seek recidivist status against Felder, who has two previous felony convictions and could have been facing life in prison.
February 14, 2008
Merits brief of defendant in Kennedy, the SCOTUS capital child rape case
As noted in posts in this Kennedy case archive, the Supreme Court later this term will hear Kennedy v. Louisiana, a case allowing it to review the constitutionality of state laws that make the death penalty a punishment for the crime of child rape. (Over at his great blog Sex Crimes, Corey Yung now has this new resource page with on-line materials related to Kennedy v. Louisiana). This week the petitioner filed his merits brief, which can be downloaded below. Here are snippets from the argument summary:
The death sentence imposed on petitioner constitutes cruel and unusual punishment in violation of the Eighth Amendment.
I. Punishing the crime of child rape with the death penalty cannot be squared with this Court’s decision in Coker v. Georgia, 433 U.S. 584 (1977). There, six Justices agreed “that the death penalty, which is unique in its severity and irrevocability, is an excessive penalty for the rapist who, as such, does not take human life.” Id. at 598 (plurality opinion) (quotation omitted). Subsequent decisions have made clear that capital punishment is categorically impermissible for person-on-person violence that does not result in death, and in which the offender does not attempt or intend to kill or display reckless indifference toward human life....
II. Even if it were permissible under some circumstances to impose the death penalty for child rape, petitioner’s sentence would still violate the Eighth Amendment. This Court’s jurisprudence requires capital sentencing statutes genuinely to narrow the class of death-eligible defendants in order to separate the most culpable offenders from others who have committed the same crime. But Louisiana’s capital rape law contains no narrowing mechanism that can serve to differentiate petitioner’s case in any rational way from the many child rape prosecutions in the State in which the death penalty is neither sought nor imposed.
More on Roger Clemens, Barry Bonds, perjury prosecutions and race concerns
This new Bloomberg news piece, which quotes many former federal prosecutors, has me thinking again about racial disparities if Roger Clemens is not very soon subject to the same kind of criminal charges that are now facing Barry Bonds. Here are snippets:
Roger Clemens may have risked a perjury prosecution with his sworn denials to a U.S. congressional committee investigating performance-enhancing drugs, lawyers following the case said....
Clemens may find that his denials of drug use play well with his fans, said Sam Buell, a former federal prosecutor who now teaches law at Washington University in St. Louis. They may also expose him to a criminal prosecution that could have been avoided, he said. "He's the one who's created venue for possible charges of lying,'' Buell said. "He's the one who's offered himself up as a witness. If it is then established that he's lying, it's going to be hard for the government to look the other way.''
"If you lie under oath to Congress, you are subject to prosecution,'' said Columbia Law School professor Daniel Richman, a former federal prosecutor. "The sad fact is that all too many people lie to Congress and don't get prosecuted. This is the beginning of an interesting prosecutorial decision-making process.''
The U.S. Attorney's Office in San Francisco brought perjury and obstruction charges against baseball All-Star outfielder Barry Bonds in November for telling a grand jury he didn't knowingly use steroids. Bonds denied the charges and will seek at a Feb. 29 hearing to dismiss the perjury count. Olympic sprinter Marion Jones was accused of obstruction and lying to U.S. investigators about taking steroids. Jones pleaded guilty to the charges and was sentenced to six months in prison.
Some recent related posts:
Eighth Circuit rejects constitutional challenges to long bargained justice
The Eighth Circuit issued a bloodless ruling on Valentine's Day in a case with notable facts in US v. Kling, No. 07-1303 (8th Cir. Feb. 14, 2008) (available here). Here is how the opinion begins:
Larry Raymond Kling pleaded guilty to one count of child exploitation, in violation of 18 U.S.C. § 2251(a). Prior to pleading guilty, Kling entered into a plea agreement with the government pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). In his plea agreement, Kling agreed to a sentencing range of 324 to 360 months' imprisonment. The district court accepted the plea agreement and sentenced Kling to 324 months' imprisonment. Kling appeals, arguing that a sentence imposed pursuant to a Rule 11(c)(1)(C) plea agreement is illegal and that his sentence is a violation of the Eighth Amendment. We affirm.
It appears that the defendant, whose age is not mentioned in this opinion, made videotapes and took pictures of himself "engaging in sexual acts with a 15-year-old girl." The defendant claims he agreed to plead guilty only to avoid a possible life term, and the district judge at sentencing noted "the severity of the sentence recommended by the agreement and expressed an opinion that 'this is the most unjust sentence that I have ever imposed.'" Unfortunately for Kling, even on Valentine's Day, he gets not love from the circuit court when he complains about his sentence for taking pictures of his forbidden love.
"McNamee's Lawyer Predicts Clemens Pardon"
This AP story has the same headline as this post. Here are the details of another example of everything coming back to sentencing and politics:
One of Brian McNamee's lawyers predicted that Roger Clemens will be pardoned by President Bush, saying some Republicans treated his client harshly because of the pitcher's friendship with the Bush family. Lawyer Richard Emery made the claims Thursday, a day after a congressional hearing broke down along party lines.
Many Democrats were skeptical of Clemens' denials that he used performance-enhancing drugs and Republicans questioned the character of McNamee, the personal trainer who made the accusations against the seven-time Cy Young Award winner. "It would be the easiest thing in the world for George W. Bush given the corrupt proclivities of his administration to say Roger Clemens is an American hero, Roger Clemens helped children," Emery said in a telephone interview. "It's my belief they have some reason to believe they can get a pardon."
During Wednesday's session before the House Committee on Oversight and Government Reform, Clemens repeated his denials under oath, which could lead to criminal charges if federal prosecutors conclude he made false statements or obstructed Congress.
Emery cited Bush's decision last year to commute the 2 1/2-year prison sentence of I. Lewis "Scooter" Libby, his vice president's former top aide. Libby was convicted in the case of the leaked identity of a CIA operative. During the hearing, Clemens cited his friendship with Bush's father, President George H.W. Bush, a baseball fan who regularly attends Houston Astros' games. Clemens said he was on a recent hunting trip when the elder Bush called with words of support. "They have some belief that even if he's prosecuted, he will never have to serve jail time or face a trail," Emery said. "This is a charade we're going through."
IRS Special Agent Jeff Novitzky attended the hearing and watched from the second row. Novitzky has been a part of the BALCO prosecution team that secured an indictment against Barry Bonds on charges of perjury and obstruction of justice. Bonds testified before a grand jury in 2003 and denied that he knowingly used performance-enhancing drugs. Emery praised Clemens' lawyers, Rusty Hardin and Lanny Breuer, as knowledgeable and said the prospect of a pardon was the only explanation that allowed the pitcher to repeat his denials under oath. "It's the only reason lawyers worth their salt would allow their client to run into the buzzsaw of Jeff Novitzky and the potential prosecution, tampering and lying to a federal official," Emery said.
Some recent related posts:
- Will the new US Pardon Attorney "scandal" garner any serious attention?
- Editorial on presidential pardon practices
Another potent report calling for juve sentencing reforms
As detailed in this press report, an "Illinois youth justice advocacy group called for the abolition of life-without-parole sentencing for youths 17 and under on Wednesday." Here are more details from the article:
The Illinois Coalition for the Fair Sentencing of Children interviewed 103 state prisoners who got that maximum sentence even though they were 14 to 17-year-olds. The oldest prisoner who talked about his life-without-parole sentence as a youth, is now 47. The study concluded that adolescents should have the chance to come before a parole board within the first 15 to 20 years of their life sentence.
The group said it is inhumane to lock-up minors for life without the chance of parole. They said adolescents are less culpable than adults and are capable of being rehabilitated. The coalition pointed out that the U.S. Supreme Court 2005 recognized that children are “categorically less culpable” for their crimes because their brain development is still evolving. Some psychiatrists said that young adults are not necessarily less culpable, but their developmental stage needs to be considered.
Injections, physicians and distractions
As detailed in many long-ago posts (examples here and here), for nearly two years — ever since lower federal courts started regularly blocking state executions because of Eighth Amendment concerns — I have been calling for Congress to hold hearings in which doctors and lawyers could provide evidence on the practicalities of injection protocols. Notably, yesterday brought a high-profile House hearing with doctors and lawyers providing evidence of injection protocols, but of course the focus was injections given to Mr. and Mrs. Clemens. I suppose this shows yet again that politicians and the public care a lot more about sports than the death penalty, but it hardly helps fix our broken system of capital punishment.
Fortunately, anyone eager to hear from doctors and lawyers about execution protocols can get some satisfaction from SSRN through this new piece, titled "Physician and Execution — Highlights from a Discussion of Lethal Injection." Here is the abstract:
This article constitutes excerpts of a videotaped discussion (www.nejm.org) hosted by the New England Journal of Medicine on January 14, 2008, concerning a range of topics on lethal injection prompted by the United States Supreme Court's January 7 oral arguments in Baze v. Rees. Dr. Atul Gawande moderated the roundtable that included two anesthesiologists — Dr. Robert Truog and Dr. David Waisel — as well as law professor Deborah Denno. The discussion focused on the drugs used in lethal injection executions, whether physicians should participate, potential alternatives, and some of the legal parameters of Baze.
February 13, 2008
More thoughts about the scope of Second Amendment rights
My post this morning about the potential scope of Second Amendment rights and the prospect of felon gun right has led to some great comments, and now I want to fill out my (half-baked?) ideas in this arena. Specifically, I want to highlight how far courts often go to protect important provisions of the Bill of Rights, and then question whether other Second Amendment fans really have the courage of their convictions.
Specifically, consider that in the Fifth Amendment context, the right not to "be compelled in any criminal case to be a witness against himself" has been interpreted to require Miranda warnings. Or consider that in the Sixth Amendment context, the right "to have the assistance of counsel" has been interpreted to require the state at its expense to provide an effective lawyer.
In other words, whether seen as living or dead, provisions in the Bill of Rights have often been dynamically interpretted to safeguard rights against the government that courts consider important (and I am not even talking about any penumbral emanations). And, lets play out the Sixth Amendment analogy in light of current federal law barring all felons from gun ownership: Would anyone find constitutional a federal law that made it a felony offense — and one subject to a 10-year federal prison sentence — for any and all previously convicted felon to hire a lawyer?
Again, lets keep the context in mind as I play out these ideas: I fully understand why people who do not support individual gun rights are eager to deny gun rights for felons and to support long sentences for gun crimes. But this returns me to the tough question for genuine supporters of individual Second Amendment rights: if a person really, truly, deeply believes in an individual and fundamental right to keep and bear arms, why should this person (other than for reasons of political expediency) be willing and eager to concede that such a fundamental right is always forfeited by anyone who has ever committed a felony?
Should Roger Clemens now be indicted for perjury?
Here is a very simple question for any and all federal prosecutors or would-be federal prosecutors: Based on his performance under oath before the House today, should Roger Clemens be indicted for perjury. According to this MLB.com article, at least one former federal prosecutor is talking up perjury charges for the seven-time Cy Young winner:
Roger Clemens was unconvincing in his testimony before Congress and may have opened himself up to federal perjury charges, a legal expert told MLB.com on Wednesday. Katherine Darmer, a former assistant U.S. attorney in New York and an expert on criminal procedure, said that Clemens did not come across as credible and that it would not be surprising to see the former big league hurler experience more legal troubles in days to come. "I thought Roger Clemens did not come across well," said Darmer, a professor of law at Chapman (Calif.) University. "Coming at it from pretty much an open mind, I just thought he was not credible. He's obviously got a lot to lose with his denials, but if I were his lawyer or his family, I'd be worried about perjury charges."
Darmer said that Clemens may have been ill-advised to testify before Congress, especially after Rep. Henry Waxman (D-Calif.), the chairman of the House Committee on Oversight and Government Reform, said Wednesday that he was prepared to shy away from holding the hearing. Clemens insisted that he wanted an opportunity to set the record straight against lingering charges from his former trainer, Brian McNamee. Darmer said she believed Clemens thought he would have been able to better convince the committee of his innocence. "I think it backfired," Darmer said. "This may not be the majority view, but in watching these two guys, I just thought Roger came across as [less] credible. They were able to point to a number of inconsistencies, particularly his deposition denials, where he denied repeatedly that he'd had any conversations with McNamee about [HGH], and then later, he said, 'Except for when my wife [used].' It didn't add up."...
Darmer noted that, before Congress, Clemens attempted to steer several questions and did not answer in a straight-forward fashion at times, especially when inconsistencies in his testimony were pointed out.... "Somebody's lying, obviously. There's no way you can reconcile these two stories, and I think there's a lot of ways you can't reconcile Clemens' own story. Given that there's an independent third party [in the form of Andy Pettite], I think Clemens could face charges."
Darmer said that Clemens' tours of Capitol Hill on three recent days, going door-to-door to meet with as many representatives as possible, were an ill-guided attempt to exert influence. "He's got star power, and I think he was hoping he could use that and leverage that," Darmer said. "He's a national hero and a lot of people love the guy. As a federal prosecutor looking at these guys, I think Clemens is in trouble."
Should Congress not pursue the inconsistencies in Clemens' story, Darmer said, the message to the American people would not be favorable. "To me, it would look like they are giving special favors to a well-loved sports hero," Darmer said. "I think almost anyone else that appeared before Congress and told what, I believe, will turn out as bold-faced lies, would face consequences. Were they to just let it slide, I don't think that would look good for Congress."
Though Professor Darmer is focused on how it would make Congress look if Clemens does not have perjury charges, I am more concerned about how it looks from a racial justice perspective. As I noted in prior posts here and here, I am troubled that the highest profile athletes to be prosecuted for lying about steroid use have all been African-Americans (Barry Bonds, Marion Jones and Dana Stubblefield). Though I am not making direct or even indirect allegations of biased prosecutorial practices, I do consider the pattern worthy of commentary and critical reflection, especially if Clemens ultimately escapes having to face an indictment under all these circumstances.
Oregon AG seeks cert on Blakely's applicability
As detailed in this post, a few months ago the Oregon Supreme Court held in State v. Ice, No. S52248 (Ore. Oct. 11, 2007) (available here), that the "federal constitution requires that a jury, rather than a judge, find the facts that Oregon law requires be present before a judge can impose consecutive sentences." The Attorney General of Oregon does not agree and is now seeking Supreme Court review of this question:
Whether the Sixth Amendment, as construed in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004), is violated by the imposition of consecutive sentences based on the sentencing judge’s determination of a fact (other than a prior conviction) that was not found by the jury or admitted by the defendant.
Oregon's petition for cert with this question can be downloaded below, and here are part of the "reasons for granting" section of the petition:
This Court should grant the petition for writ of certiorari and review this case for two reasons. First, the Oregon Supreme Court opinion deepens the significant split among the state courts that have considered this recurring issue of federal constitutional law....
Second, the Oregon Supreme Court’s holding is an unwarranted extension of Apprendi and Blakely beyond what this Court’s reasoning supports. This Court has explained the Apprendi rule as a non-subjective means for determining the elements of an offense. By extending the jury-trial requirement to establishing how otherwise-lawful sentences are served, the Oregon Supreme Court has gone well beyond the due-process concerns that require states to prove each element of an offense to a jury beyond a reasonable doubt.
Do any Second Amendment amici oppose extreme gun crime sentencing?
I am impressed, though not especially surprised, that nearly 50 amicus briefs have been filed in the Supreme Court in support of an individual right to keep and bear arms under the Second Amendment. SCOTUSblog here links to all these friendly briefs.
I wonder if any of these groups will help in my planned efforts to attack severe gun sentences under the Second Amendment if (when?) the Supreme Court recognizes that the this amendment provides an individual and enforceable right. As I have noted in a number of prior posts, I think laws prohibiting all felon from ever keeping a firearm and lengthy mandatory sentencing terms for simply keeping a gun under certain circumstances can (and should) be subject to a constitutional attack if the Supreme Court takes an individual view of the Second Amendment in Heller.
Some related posts on the Heller Second Amendment case:
Is crack reform to be subject to bargained justice?
The Washington Post has this intriguing little item suggesting a crack sentencing reform deal could be in the works:
Congress could limit the early release of crack cocaine offenders as part of a possible deal with the Bush administration to reduce a disparity in cocaine sentencing, a leading Democrat said yesterday.
Sen. Joseph R. Biden Jr. (Del.) said there is growing support in Congress for revising a 22-year-old law that sets far harsher federal penalties for crack cocaine than for powder cocaine. A Justice Department willingness to reduce the disparities and revise a mandatory minimum sentence for crack possession makes a deal possible, Biden said. He said he could consider in return the Bush administration's plea to limit a pending release of crack offenders whose sentences were cut by the U.S. Sentencing Commission.
"I'm willing to consider a compromise [as long as] . . . there's a significant change relative to disparities, a significant change relative to minimum mandatory, and in return for that I'm willing to talk about a meaningful change in retroactivity," Biden said after a hearing of the Senate Judiciary subcommittee he chairs.
I would be very surprised if this kind of deal becomes a legislative reality anytime soon, but it is really interesting that this sort of deal-making is being openly discussed.
Some recent related posts:
February 12, 2008
The cert petition in US v. Lett (and amici encouragement)
I reported in this post this morning that today we filed a cert petition in the remarkable case of US v. Lett (which was the topic of this column in today's New York Times). I can now post a copy of the filed petition, which has this Introduction:
Federal district courts impose more than 65,000 felony sentences every year. Inevitably, sentencing judges occasionally commit reversible legal errors in imposing these sentences. Acknowledging that reality, the Federal Rules of Criminal Procedure expressly afford sentencing judges an efficient means (rather than awaiting appellate reversal) to correct such errors when caught quickly. Rule 35(a) provides that “[w]ithin 7 days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error.” Here, the district court did just that. Based on a misunderstanding of the applicable statutory minimum sentence, Judge William Steele at first mistakenly concluded that he was unable to sentence petitioner Patrick Lett to less than five years’ incarceration for a minor, non-violent drug offense. Recognizing within the Rule 35 time period that he had erred in determining the sentencing range, Judge Steele corrected his legal error and imposed a lawful (and lower) sentence according to the terms of 18 U.S.C. § 3553(a).
The Eleventh Circuit reversed, holding that the district judge’s conscientious effort to correct his sentencing mistake was improper because the Judge’s legal error did not constitute “other clear error” for purposes of Rule 35. In doing so, the Eleventh Circuit adopted an unduly restrictive view of “other clear error” that undermines Rule 35’s ability to allow efficient corrections to legally erroneous criminal sentences. The decision below thus threatens the effective and just operation of the criminal sentencing system, an issue of substantial federal importance given the tens of thousands of sentences entered every year in U.S. District Courts.
Compounding the need for review, the court’s decision also conflicts with settled law in other circuits. All courts agree that Rule 35’s purpose is to allow a trial judge to avoid the need for appeal where the result of that appeal will be a reversal for resentencing. Rulings from the First, Second, and Ninth Circuits have correctly concluded in comparable settings that any time that a sentencing judge operates under a legal misunderstanding as to applicable sentencing options, such a mistake necessarily constitutes reversible error requiring resentencing (and thus is the type of error allowing correction under Rule 35). The court below in this case, by contrast, concluded that not all such sentencing errors amount to “clear error” allowing for correction through Rule 35(a). Rather, according to the Eleventh Circuit, an error regarding the judge’s sentencing authority will be “clear” (and thus subject to efficient correction in the district court) only if binding precedent in a factually indistinguishable case plainly reveals that error.
Finally, the Eleventh Circuit also adopted a novel and misguided “remedy” in the wake of its flawed Rule 35(a) interpretation. It ordered the District Court to impose the initial, erroneous five-year prison term — notwithstanding Judge Steele’s conscientious (and unreversed) determination that he had committed error in imposing that sentence, as well as Judge Steele’s express finding that only a much shorter prison term was “sufficient but not greater 4 than necessary” to serve the sentencing purposes Congress set out in 18 U.S.C. § 3553(a). Nothing in the language of Rule 35 or any other statutory provision justifies the Eleventh Circuit’s order that the district court now impose a legally erroneous sentence on Patrick Lett.
The Eleventh Circuit’s strained interpretation of Rule 35 reverses a “just determination” in this case, while also disrupting Judge Steele’s efforts to achieve “simplicity in procedure and fairness in administration,” and to “eliminate unjustifiable expense and delay.” See Fed. R. Crim. P. 2. Because the Eleventh Circuit’s ruling creates confusion that will lead to unjust and/or conflicting results in lower courts, this Court should intervene to provide needed guidance as to what constitutes “clear error” under Rule 35(a). Patrick Lett respectfully urges the Court to grant certiorari and reverse the decision below.
Though we have strong arguments for Supreme Court review, the statistical reality is that less than 1% of all cert. petitions are accepted by the Court. Consequently, I can state with confidence that Sgt. Lett (and his lawyers) would be happy and eager to have those aggrieved by this case consider filing an amicus brief in support of our cert. petition.