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April 29, 2009

Eager to hear and post reports on courtroom ripples of new DOJ crack/powder policy

Especially because the Justice Department's important advocacy for completely eliminating the crack/powder sentencing disparity (basics here) prompts many real-world questions for on-going crack cases (noted here), I am eager to hear about and post details of any early courtroom consequences of DOJ's new policy perspective.  In particular, I hope litigants and/or court information officers will send me information about any notable documents or rulings that make reference to the new DOJ policy.

Some recent related posts:

April 29, 2009 in Drug Offense Sentencing | Permalink | Comments (1) | TrackBack

With the new DOJ advocating completely eliminating crack/powder disparity, now what?

Because the wheels of federal sentencing reform move slowly in Congress, the Justice Department's important advocacy for completely eliminating the crack/powder sentencing disparity (basics here) probably will take a while to become new sentencing legislation.  But the realities of federal sentencing decision-making move very quickly in the courtroom.  Specifically, in fiscal year 2008 there were over 6000 crack sentences imposed in federal court, which means that over 100 crack defendants are sentences each and every week in federal court and that perhaps 20 or more crack defendants are scheduled to be sentenced just later today.

What should now happen in these upcoming crack sentencing cases later today and tomorrow and next week and next month?  What should happen in on-going sentencing appeals in which a defendant is complaining to a circuit court that his within-guideline sentence is unreasonable?  What should happen to those cases involving defendants getting the retroactive benefit of the new crack guidelines, but have seeking an even greater reduction than the US Sentencing Commission authorized?  And, whatever federal judges can and think they can/should now do, what will federal prosecutors nationwide be recommending that judges do?

Exciting times... and uncertain times.  I guess this is the inevitability consequence of change we can believe in.

UPDATE:  Both Senators Durbin and Feinstein have been asking hard questions about how to apply new rules to old cases, and nobody has really good answers (and Senator Feinstein used the term "parole" in her question, perhaps because even she does not completely realize there is no such concept in current federal criminal law).  Of course, one possible "easy" answer might be to take care of this problem through executive clemency mechanism, rather than forcing courts to deal with these matters.

April 29, 2009 in Drug Offense Sentencing | Permalink | Comments (8) | TrackBack

Two SCOTUS losses for criminal defendants

As detailed in this SCOTUSblog post, the Supreme Court handed down two opinions this morning and they are both losses for defendants:

The Court has released the opinion in Kansas v. Ventris (07-1356) . The decision below, which held for the defendant, is reversed and remanded in a 7-2 opinion by Justice Scalia, available here.  Justice Stevens filed a dissenting opinion joined by Justice Ginsburg.

The Court has released the opinion in Dean v. United States (08-5274). The decision below, which held for the United States, is affirmed in a 7-2 opinion by Chief Justice Roberts, available here. Justice Stevens filed a dissenting opinion and Justice Breyer filed a dissenting opinion.

Dean involves a sentencing opinion dealing with a mandatory minimum sentencing provision that I will likely blog about later today.  Readers are welcome to get a running start in the comments.

April 29, 2009 in Mandatory minimum sentencing statutes | Permalink | Comments (15) | TrackBack

Watching the webcast of the Senate crack disparity hearing

As detailed in this official notice, the Senate Committee on the Judiciary, Subcommittee on Crime and Drugs will hold a hearing at 10am this morning entitled "Restoring Fairness to Federal Sentencing: Addressing the Crack-Powder Disparity."  Though I do not plan to live-blog the event, I do plan to try to watch the live webcast from this link.  And I hope readers feel free to use the comments to provide real-time commentary or any notable moments from the event.

Some recent related posts:

UPDATE:  As I am watching Assistant Attorney General Lanny Breuer testify via webcast, I received an e-mail from FAMM titled "Today is an historic day for sentencing reform!," and it starts this way:

This morning, the U.S. Department of Justice is announcing that it supports replacing the controversial 100:1 sentencing disparity between crack and powder cocaine with an even 1:1 ratio.  DOJ's announcement, included in testimony to be delivered on Capitol Hill by Assistant Attorney General Lanny Breuer, marks the first time the Justice Department has publicly endorsed equalization of the penalties between crack and powder cocaine.... FAMM member Cedric Parker is the final witness at the hearing.

The significance of today's announcement cannot be overstated.  For years, FAMM has argued that individualized and proportionate sentencing does not jeopardize public safety. Today, the U.S. Justice Department — the nation's top law enforcement agency, the overseer of every federal prosecutor in the United States — agreed with us. DOJ's new position on crack penalties acknowledges that we need not sacrifice safety for sentencing fairness.  The nation's top cops say we can have both!

And I just heard AAG Breuer state that DOJ now wants "this Congress to completely eliminate the crack/powder disparity."  He also has says that AG Holder has created a working group on federal sentencing that will work toward a better sentencing structure for how to deal with these matters.

MORE:  Here are early reports on this hearing from the Washington Post and the Wall Street Journal.

April 29, 2009 in Mandatory minimum sentencing statutes | Permalink | Comments (1) | TrackBack

Unusual porn case leads to unusual rejection of a federal plea deal

It is notable any time that a federal judge rejects a plea deal worked out by the prosecution and the defense.  But, as documented by local coverage here and here, an unusual porn case from Indiana is notable for lots of other reasons, too:

A federal judge rejected a plea agreement for repeat bestiality offender Michael Bessigano in Hammond federal court Tuesday, saying Bessigano's case doesn't justify a sentence below federal guidelines.

Judge Philip Simon said the confidential report from probation agents recommended a sentencing range between 33 and 41 months in prison for the Hobart man's conviction of downloading bestiality pornography.

Discussion in court indicated that, under the plea agreement between defense lawyer John E. Martin and Assistant U.S. Attorney Bernie Van Wormer, Bessigano could be sentenced to as little as two years in prison. Simon called the agreement "not appropriate," and said that if Bessigano persisted in his guilty plea without the agreement, he would be exposed to a tougher sentence.  Simon gave Van Wormer and Martin two weeks to work out another plea agreement. Simon said he would schedule a joint plea hearing and sentencing....

Before he faced federal bestiality charges, Bessigano spent more than four years in prison on an animal cruelty conviction for having sex with a chicken, then killing the animal in a Valparaiso motel room.

Though I will tolerate off-color jokes about this remarkable case, I will expect the jokes to go beyond obvious "choking the chicken" references.

April 29, 2009 in Procedure and Proof at Sentencing | Permalink | Comments (9) | TrackBack

Some real-world insights from some real-world lawyers

This interesting new article from the Fulton County Daily Report, headlined "Best Lawyers' Panels Agree That Law Schools, Firms Need Retooling," say a lot about the modern realities facing lawyers and law schools. Here are some notable excerpts that end with a sentencing spin:

Seismic changes in the legal profession engaged the concern of seasoned attorneys at a conference held last week by the Best Lawyers of America.... At Friday's panels on the future of legal education and the legal profession, the tenor of questions showed a lively concern for where the profession is headed.

The practice of law has changed radically in 25 years.... Law schools must retool legal education, the deans agreed, but exactly how still is not clear. "You're producing a product that very few people want. Firms have hiring freezes. Why not stop producing the product -- or create new markets for what you're producing?" one lawyer challenged the deans. "You're like the auto manufacturers who produce a product for which there is no demand."...

Organizational behavior and product management skills plus strategic business thinking are important competencies for lawyers at firms handling today's giant matters, said the deans. But they said the current criteria for law school admission -- college grades and LSAT scores -- do not assess these competencies. [Dean Richard] Matasar challenged lawyers who think legal education is out of step with the demands of the market to "go back to your place that manufactured you and put pressure on them. You have the power of the pocketbook."

Another lawyer in the audience objected to the idea that legal education should merely supply product to private firms and companies. "We're not talking about cars. We're talking about minds. ... This is supposed to be a profession," he protested. Massive discovery demands have shifted legal work away from thinking and analysis to product management, said another attorney. "When we were in law school, discovery meant two or three banker boxes of documents. Now it means two or three hundred boxes. That demands widgets -- not thinking," he said.

Members of the panel on the future of the profession agreed that the vastly expanded scale of electronic discovery has transformed legal work. The panel's moderator, Philip K. Howard of Covington & Burling, pointed to another fundamental change: the increase in the number and complexity of laws.

"Layers of law have accumulated like concrete. Some is productive. So much of it is not. Congress never goes back and revises," said Howard, who addresses this issue in his latest book, "Life Without Lawyers: Liberating Americans From Too Much Law."...

[Robert] Clifford, a member of plaintiffs firm, the Clifford Law Offices in Chicago, cited gargantuan discovery requirements as one of the culprits for the disappearing jury trial....

[Charles] Stillman, the panel's white-collar criminal practitioner, said federal sentencing guidelines also have chilled jury trials. Defendants prefer to cut a sentencing deal rather than take their chances in court.  Stillman is a founder of Stillman, Friedman & Shechtman and a former federal prosecutor.

He warned of a new development -- the government's increasing use of private firms to handle internal investigations of companies.  Subcontracting investigations to firms is another shift in power from public law enforcement agencies to the private sector, said Stillman. "So lawyers are increasingly viewed as an arm of government.  This is a very serious challenge to our profession, which I find quite scary," he said.

Cross-posted at LSI

April 29, 2009 in Who Sentences? | Permalink | Comments (1) | TrackBack

"Woman sent to jail for texting in court"

This local story from Utah, which carried the headline that is the title of this post, ought to get technology fans and First Amendment gurus all worked up:

A Utah woman is in jail for sending a text message. She's being held for contempt of court.

Susan Henwood, a mother of four, has been sentenced to 30 days in the Tooele County Jail because she sent a text message about a court hearing she was observing. "She shouldn't be there. She did nothing wrong," her husband, Joshua Henwood, said.

In early April, Joshua was sick and couldn't make his court appearance in a debt collection case. He sent Susan to ask for a continuance and to keep him updated, so she sent a text that said: "It doesn't look good for you" and "They're coming for the Polaris Ranger." The Polaris was one of several items the other side of the case wanted to sell to recoup supposed losses.  Henwood says his wife's text wasn't a warning to hide anything, just a heads up.

But Judge Stephen Henroid caught wind of the text and held Susan in contempt of court.  She started her 30 day sentence Monday. "You see drunk drivers and what do they get? A few days. She texts and she's in jail for 30? No, no," Susan's grandmother, Dolores Kyle, said.

Judge Henroid wasn't available for comment. A spokeswoman with the court system says the problem wasn't that Susan texted in court but the content of her text, but the spokeswoman was unable to provide further detail.

Back in Grantsville, Joshua says he still doesn't understand why his wife must spend a month in jail. He feels powerless to help. "I think this was an unfit punishment for the crime," he said.

The court spokeswoman says while everyone in a courtroom is asked to turn off their cell phones, sending a text message will usually just get you a reprimand from the bailiff. In this case, she reiterates, it was the content of the message.

April 29, 2009 in Offense Characteristics | Permalink | Comments (17) | TrackBack

A post-Stevens pitch to formalize prosecutorial disclosure duties

Over at Politico, Josh Gerstein has this fascinating report, headlined "Stevens Judge wants evidence rules changed."  Here is how it starts:

The judge who oversaw the trial of former senator Ted Stevens — and who ordered possible criminal contempt proceedings against six prosecutors on the case — now wants federal court rules changed to make clear that prosecutors have a duty to give defendants all evidence that could aid their defense.

The Stevens case judge, Emmet Sullivan sent a letter Tuesday to another judge who chairs a panel on court rules, urging that the rules for all federal criminal cases impose such a disclosure obligation on prosecutors.  "An amendment...that requires the government to produce all exculpatory information to the defense serves the best interests of the court, the prosecution, the defense, and, ultimately, the public," Sullivan wrote.  "Such a rule would also provide clear guidance to the prosecutor and indeed protect prosecutors from inadvertent failures to disclosure exculpatory information."

April 29, 2009 in Who Sentences? | Permalink | Comments (0) | TrackBack

April 28, 2009

CLR note on co-defendant disparity after Booker

Now available on-line is this new Columbia Law Review note titled "Equal Justice Under Law: Post-Booker, Should Federal Judges Be Able to Depart from the Federal Sentencing Guidelines to Remedy Disparity Between Codefendants' Sentences?".  Here is the piece's abstract:

In the 2005 case of United States v. Booker, the Supreme Court held that the Federal Sentencing Guidelines were merely advisory and therefore no longer binding on trial judges.  Since then, some judges have based departures from the Guidelines on the finding that the disparity between codefendants’ sentences is unwarranted.  Although basing a departure on this consideration was universally impermissible before Booker, most circuits have now held that consideration of codefendant disparity is a permissible basis for departure.  However, some circuits have held that this disparity is still not a justification for departure or that departures may not be based on codefendant disparity in certain types of cases.  This Note argues that Booker and subsequent Supreme Court decisions permit trial judges to remedy disparity between codefendants’ sentences in all cases where the judge finds that the disparity is unwarranted.  It then shows how consideration of this disparity furthers Congress’s goal of increased sentencing uniformity and ensures greater fairness in the sentencing of defendants who only played a minor role in a crime.

April 28, 2009 in Booker and Fanfan Commentary | Permalink | Comments (1) | TrackBack

A SCOTUS win for the capital defendant in Cone v. Bell

Though it will not get as much attention as a bunch of four-letter words, the B-ruling in today's Supreme Court double-feature is a win for a capital defendant.  Here are the basics courtesy of SCOTUSblog:

The Court has released the opinion in Cone v. Bell (07-1114). The decision below, which held for the state, is vacated and remanded in a 6-3 opinion by Justice Stevens available here. The Chief Justice filed an opinion concurring in the judgment. Justice Alito filed an opinion concurring in part and dissenting in part.  Justice Thomas filed a dissenting opinion, joined by Justice Scalia.

UPDATE:  C&C has this extensive commentary on the Cone ruling.

April 28, 2009 in Death Penalty Reforms | Permalink | Comments (18) | TrackBack

Is the new DOJ about to crack the stalemate over fixing the crack disparity?

For many years, politicians and lawyers on both sides of the political aisle have been saying that the notorious 100-to-1 crack/powder ratio in federal sentencing statutes was unjust and should be fixed.  But, especially in the legislative and executive branches, there has been mostly talk and little action on this front.  (Some in the federal judiciary, thanks to Booker and Kimbrough and the new USSC reduced and retroactive crack guidelines, have been working toward means to better achieve case-specific justice even while other branches have avoided dealing with these issues on a systematic, system-wide basis.)

With a new DOJ sheriff in town, however, there is now good reason for those eager for reform to be more hopeful than cynical.  And, though there has been little formal action on this issue to date, a hearing in Congress scheduled for Wednesday — which just happens to be President Obama's 100th day — could mark an important turning point in both the debate and the practical realities of crack sentencing. 

As detailed in this official notice, the Senate Committee on the Judiciary, Subcommittee on Crime and Drugs will hold a hearing entitled "Restoring Fairness to Federal Sentencing: Addressing the Crack-Powder Disparity" on Wednesday morning.  And, as indicated in this new CQ Politics article, some inside-the-Beltway folks think that something big and consequential might be brewing:

Troubled by the disproportionate effects of the sentencing disparity, members of Congress as well as federal officials have been working in recent years to fix the problem.  In 2007, then-Sen. Joseph R. Biden Jr. , D-Del., introduced legislation that would end harsher sentencing for crack vs. powder cocaine.  A co-signer of the legislation was Barack Obama , D-Ill.

Now that Obama and Biden are in the White House, those who advocate for fair and proportionate sentencing laws say they have good reason to hope that Congress will put sentences for crack and cocaine on equal footing.

The Justice Department is sending Lanny Breuer, chief of its criminal division, to testify at Wednesday’s hearing, which is a positive signal from the Obama administration, said Mary Price, vice president and general counsel for Families Against Mandatory Minimums.

In this arena, I am disinclined to predict or even expect change until I see it with my own eyes.  But I think it is quite understandable for the folks at FAMM and at The Sentencing Project to be especially hopeful that a new DOJ might help finally forge a new path.  Stay tuned.

Some recent related posts:

April 28, 2009 in Mandatory minimum sentencing statutes | Permalink | Comments (4) | TrackBack

What kind of plea deal might be in the works for Dreier?

This new article from the New York Law Journal, headlined "Dreier to Plead Guilty to All Charges, Attorney Says," reports on a high-profile white-collar prosecution that now appears headed toward a high-profile white-collar sentencing.  Here are details from the article:

Marc S. Dreier intends to plead guilty on May 11 to every count in the indictment charging him with stealing hundreds of millions of dollars from hedge funds and individuals, his attorney said Monday.

Defense attorney Gerald L. Shargel told Southern District of New York Judge Jed S. Rakoff that his client will plead to one count of conspiracy to commit securities fraud and wire fraud, one count of securities fraud, five counts of wire fraud and one count of money laundering.  Each count carries a potential sentence of 20 years in prison except for the conspiracy count, which carries a five-year term....

Dreier, the founder and sole equity partner of the now defunct 250-attorney Dreier LLP, had been widely expected to plead guilty to some or all of the charges he faces in connection with a scheme in which he peddled more than $700 million in phony real estate and pension fund notes. To keep his scheme going, he paid back approximately $300 million to people who bought the bogus notes.  He is charged with selling notes to at least 13 different funds and three individuals between 2004 and 2008, with the purchase price wired to an attorney trust fund maintained by his firm....

Dreier, who was present at Monday's hearing, is effectively asking for the mercy of the court in deciding to plead guilty.  Asked after the hearing why Dreier wanted to plead guilty instead of going to trial, Shargel said,  "He wants to end it because he accepts responsibility for what he did."  Shargel also said Dreier has accomplished much in his life, but he "simply went off the tracks ... . I'm sure no one will ever know why he did what he did."

In addition to accepting responsibility, Dreier surely would also like to avoid spending the rest of his life in federal prison and a plea deal was likely the only way to minimize his risk of never being a free man again.  The question now, however, is how good a deal has he managed to secure.  Judge Rakoff has a sentencing history that should make the defense team hopeful, but Dreier's crimes may make it hard for either prosecutors or the sentencing judge to show him too much mercy come sentencing.

April 28, 2009 in White-collar sentencing | Permalink | Comments (1) | TrackBack

"Is Crime Victims Rights Law Being Misused in Environmental Cases?"

09_ncvrw_icon The question in the title of this post is the headline of this new piece in The National Law Journal.  Here is how the effective piece begins:

A law that was designed to empower crime victims and give them a stronger voice in the justice system is increasingly being used as a weapon to punish companies accused of environmental crimes.

To the chagrin of corporate defense lawyers, the 2004 Crime Victims Rights Act is increasingly turning up in the government's environmental prosecutions, with victims fighting to be heard, especially at sentencing.

The issue has triggered robust legal debate. Defense lawyers argue that the five-year-old statute is being used for unintended purposes. They also contend it gives prosecutors an unfair advantage by letting them use victims to play on the courts' emotions at sentencing.

But victims' rights advocates counter that people hurt in catastrophes such as explosions or chemical spills deserve a seat at the table -- and a say in the punishment.

It is interesting and notable that this question is being asked right in the middle of National Crime Victims’ Rights Week.  As detailed in this new press release from the White House, President Obama has called upon all Americans "to observe this week by participating in events that raise awareness of victims' rights and services and by volunteering to serve victims in their time of need."  I suppose that this NLJ article in some ways satisfies this call.

April 28, 2009 in Victims' Rights At Sentencing | Permalink | Comments (0) | TrackBack

April 27, 2009

Circuit courts say the darndest things

I make an effort to read just about every published federal appellate ruling dealing with sentencing issues, and sometimes this effort rewards me with amazing nuggets of wisdom from circuit judges.  For example, I learned something new about the US Constitution from the final paragraph of the Eleventh Circuit's work today in US v. Aldrich, No. 08-15556 (11th Cir. April 27, 2009) (available here).  Specifically, thanks to Aldrich, I now know that "[t]here is no constitutionally significant difference between masturbating in front of a minor in person versus doing so via web camera."

April 27, 2009 in Sex Offender Sentencing | Permalink | Comments (2) | TrackBack

"America's Sheriff" gets more than 5 years in the federal pen despite acquittals

Over the weekend, I noted here the interesting issues surrounding today's sentencing of the former sheriff of Orange County, Mike Carona.  Here is the basic AP report on the proceedings:

A former Southern California sheriff has been sentenced to 5 1/2 years in prison for tampering with a witness in his public corruption case.  U.S. District Judge Andrew J. Guilford sentenced Michael Carona on Monday near the 6 1/2-year term that probation officials had recommended....

Carona was indicted on sweeping public corruption charges in 2007 and stepped down from the nation's fifth-largest sheriff's department.  In January, the jury rejected the heart of the case and convicted Carona of a single count of witness tampering. 

And here is how a local weekly characterizes what happened during the sentencing, which highlights how acquitted conduct realities played a role in these proceedings:

Once dubbed "America's Sheriff," Mike Carona was sentenced this afternoon to 66 months behind bars, two years probation after he serves the prison time and a $125,000 fine for attempting to sabotage a grand jury investigation into abuse of power and bribery at the Orange County Sheriff's Department.

U.S. District Court Judge Andrew J. Guilford said during his sentencing that he didn't understand the "unrestrained celebrations" after Carona's guilty verdict, in which Carona was cleared of several other corruption charges. In January, a cheerfully weepy Carona stood outside the Ronald Reagan Federal Courthouse and declared that God, working through an Orange County jury, had provided him "a miracle" and "vindicated" him of any criminal conduct.

"A wrong message was sent regarding respect for the law and the jury system," said Guilford. "Carona has given no indication he wouldn't ask someone again to lie." Carona's attorney, Jeffrey Rawitz, took the blame today for the celebrations, calling them a result of his own lack of experience as a criminal defense lawyer. "I'm responsible for that.  We thought he was going to be convicted," Rawitz told the judge.... "I was not experienced enough as a criminal defense lawyer. I should have said, 'Keep your mouth shut.' But that relates to me, not Mr. Carona, because I didn't explain to him that he was exposed to these numbers."

Though Carona had sought a much shorter term, federal prosecutors were asking for nine years.  Thus, among other things, this case provides another example of the post-Booker tendency of judges to "split the difference" in challenging sentencing cases.

April 27, 2009 in Celebrity sentencings | Permalink | Comments (1) | TrackBack

Early report on Bies oral argument

As noted here, the Supreme Court this morning heard oral argument in Bobby v. Bies, one of the very few capital cases on the SCOTUS docket this term.  This early AP report suggests I was right to predict that the Justices are likely to give Ohio another bite at the death penalty apple in this case:

The Supreme Court appears likely to give Ohio another chance to sentence a convicted killer to death, despite a previous finding that the man is mentally retarded. The high court heard oral arguments Monday in the case of Michael Bies, who was convicted of killing a 10-year-old boy in Cincinnati in 1992.

Several of the court's liberal justices seemed to agree with the state's argument that Bies never received a proper hearing on his mental state because he was sentenced years before the high court barred the execution of the mentally disabled.

The full oral argument transcript can be found at this link.

UPDATE:  The first sentence of Adam Liptak's report here in the New York Times about the Bies argument captures the tone and spirit of what transpired during oral argument:

It does not bode well for a death row inmate when his lawyer must spend the bulk of a Supreme Court argument fending off combative questions from two of the court’s most liberal justices.

April 27, 2009 in Death Penalty Reforms | Permalink | Comments (24) | TrackBack

Eleventh Circuit holds that reasonable suspicion sufficient for search of probationer

Today in US v. Carter, No. 08-14460 (11th Cir. April 27, 2009) (available here), the Eleventh Circuit addresses an interesting intersection of different strands of criminal procedure jurisprudence.  Here is how the ruling begins:

We consider in this appeal whether the warrantless search of the home of the Defendant, a probationer, was reasonable under the Fourth Amendment.  We apply the balancing test articulated in United States v. Knights, 534 U.S. 112, 122 S. Ct. 587 (2001), and conclude that the search in this case was reasonable if supported by reasonable suspicion.  And, because there was reasonable suspicion that the Defendant was engaged in criminal conduct, we conclude that the search was reasonable and affirm the district court’s denial of the Defendant’s motion to suppress.

April 27, 2009 | Permalink | Comments (3) | TrackBack

Still no SCOTUS action on Sullivan juve LWOP case from Florida

Thanks to SCOTUSblog's posting of today's Supreme Court orders list, it appears that for the second straight week the the Justices have decided not to decide what to do with the cert petition in Sullivan v. Florida.  As detailed in posts linked below, Sullivan involves an Eighth Amendment challenge a sentence of life without parole given to a rape defendant who was only 13 years old(!) at the time of the crime. 

Some related posts on juve LWOP and the Sullivan case:

April 27, 2009 in Scope of Imprisonment | Permalink | Comments (1) | TrackBack

The little SCOTUS capital case that could...?

As detailed in this AP piece, this local story and this SCOTUSblog preview, this morning the US Supreme Court will hear oral argument in Bobby v. Bies, one of the very few capital cases on the SCOTUS docket this term.  There are so many notable aspects of this little case as it comes up from argument, I am not sure where to start my commentary.

Perhaps it is the broader SCOTUS death penalty context of Bobby v. Bies that first draws my attention.  After a series of terms with numerous consequential and controversial capital cases (e.g., Baze and Kennedy and Medellin last Term), this SCOTUS Term has only two argued cases involving capital defendants.  And, notably, neither of these capital cases emerged from the deep south or west as is typical.  Bies comes out of Ohio, and involves an intricate set of procedural issues formally concerning the Double Jeopardy Clause. 

Indeed, because the Double Jeopardy issue is so narrow in Bies, it appears that a few Justices decided simply that an error-correction cert grant was needed because the Sixth Circuit arguably over-extended precedents to take the death penalty off the table the defendant.  It is telling and somewhat remarkable that, especially in a Term with so few capital cases, not a single amicus brief was filed in Bies for either side.  (I'd love to hear from serious SCOTUS followers about the last capital case without any merits amici.)

But while Bies looks like a tiny case, there are some really big issues lurking.  Bies is the first case to provide the Justices an opportunity to consider again its consequential 2002 Atkins ruling that the Eighth Amendment prohibits the execution of mentally retarded defendants.  And because Ohio puts the burden on a defendant to prove up his mental retardation, there also also some Apprendi and/or due process issues to be found deep inside this case.  And, of course, like all state capital cases in the federal courts, there are the usual confusing and confounding AEDPA issues.

Ultimately, I think it is likely that Ohio gets a narrow victory in Bies (and I also think it is likely that Bies will live a long time on death row even if Ohio prevails in this case).  But, as cases like Baze and Marsh reminds us, the death penalty context often leads some Justices to go beyond the precise issues they must confront in a particular case.  If that happens in Bies, this little capital case from Ohio could possibly become a much bigger deal than it now seems.

April 27, 2009 in Death Penalty Reforms | Permalink | Comments (2) | TrackBack

"Time to end the crack disparity"

The title of this post is the title of this editorial from today's Philadelphia Inquier.  Here is an excerpt:

This is National Crack the Disparity Month. Never heard of it? Then listen. Crack the Disparity is the name of a coalition lobbying to change the federal law mandating longer sentences to persons arrested for having crack cocaine than those caught with powder cocaine....

The uneven treatment strikes at the heart of the justice system. The stiff sentence for crack cocaine is one of the main reasons prisons are overflowing with nonviolent offenders.

The harsher sentences have had a terrible impact on inner-city neighborhoods, where the cheaper crack is more likely to be found. Families are torn apart when members are arrested and sent to prison for long terms. Meanwhile, those arrested with powder cocaine, which is more likely in affluent settings where that form is more prevalent, get off light, in comparison.

Equal crimes should be punished equally. That's the message of the coalition, which will take 70 people to Washington tomorrow to lobby for an end to the disparity in cocaine sentencing....

The month-long attention to the cocaine sentencing issue will culminate Wednesday with a hearing before the Senate Judiciary Committee's Subcommittee on Crime and Drugs. Additional information about the hearing is on The Sentencing Project's Web site, www.sentencingproject.org.

Some recent related posts:

April 27, 2009 in Drug Offense Sentencing | Permalink | Comments (1) | TrackBack