April 26, 2009
Kansas appeals court strikes down "branding" requirement for sex offender
As detailed in this local news report, a "Kansas appeals court has ruled that a judge overstepped his authority when he ordered a man to put up signs announcing that he was a sex offender." Here are a few more details:
Quoting from the title song of the 1960s TV series “Branded,” the three-judge panel ruled Friday in the case of Leroy Schad, a 73-year-old Hudson, Kan., man who was ordered to post the signs on his house and car as part of a plea bargain related to his taking baths with two children....
While the TV show was used as an illustrative example, the ruling itself hinged on precedents from Tennessee, Montana and Illinois. In those cases, the courts ruled that public humiliation would interfere with the rehabilitative purpose of probation and was impermissible....
In addition to overruling the sign conditions, the appellate judges also ordered Stafford County District Judge Ron L. Svaty to reconsider the five-year length of Schad’s probation and a prohibition on leaving his house to buy groceries.
The full, lengthy ruling can be accessed at this link.
Should law enforcement service be an aggravator or mitigator at sentencing?
On Monday, the former sheriff of Orange County, Mike Carona, is to be sentenced in federal court. This local account, headlined "Legal experts say ex-sheriff likely to serve prison time: Will ex-lawman's badge be benefit or liability?", puts the spotlight on the question in the title of this post. As highlighted in these excerpts, the use of acquitted conduct at sentencing also is part of the story:
In the end, former Sheriff Mike Carona's punishment may come down to the weight that a federal judge puts on the badge Carona once wore. The 11th sheriff of Orange County – who hoped one day to run for lieutenant governor – will be sentenced Monday for urging his ex-assistant sheriff, Don Haidl, to lie during a grand jury investigation.
Carona was sheriff at the time of the Aug. 13, 2007, conversation that was captured on audiotape. Defense lawyers are asking U.S. District Judge Andrew Guilford to look beyond Carona's conviction and see the public servant with 32 years behind the badge – years spent advancing the cause of children and homeland security. Federal prosecutors, on the other hand, argue Carona's position as the top law enforcement official in the county makes the crime more egregious....
Carona faces a sentence ranging from probation to 20 years in prison. Several federal criminal law experts said this week that they expect Guillord to sentence Carona to some time behind bars.... Most expected him to get a sentence near the 6 1/2 years recommended in the probation report. They also speculated that Guilford would likely take into account Carona's conduct – even acts for which Carona was not convicted....
After the verdict, jurors said they thought Carona was guilty of some crimes, such as accepting illegal campaign contributions. But they said it was not enough to convict him, given that the five-year statute of limitations had passed on the conduct they thought was criminal. Judges are allowed to take anything in consideration, such as the defendant's overall behavior, said Laurie Levenson, a professor at Loyola Law School in Los Angeles.
Sentencing guidelines promulgated by Korea's supreme court
This editorial from The Korea Times, headlined "Eight Major Crimes Subject to Tougher Punishment," provides a window into how similar sentencing issues get discussed and debated around the world. Here are excerpts:
The Supreme Court has introduced sentencing guidelines for eight major crimes in order to ensure fair trials and the rule of law. Bribery, embezzlement, breach of trust, murder, rape, robbery, perjury and false accusations will be subject to tougher punishment from July.
We hope that judges will sincerely implement the guidelines to ensure fairness and objectivity in handing down sentences to those indicted. As the top court insisted, the goal of the guidelines is to restore public trust in the justice system. No one can deny that judges have often been too lenient with politicians, bureaucrats and businessmen accused of bribery, influence peddling, embezzlement and other forms of corruption.
History shows that political heavyweights, ranking officials and business tycoons have been given lighter sentences than what they should have received for grave criminal acts. In many corruption cases, prosecutors have usually demanded harsher punishments for the suspects, but judges have given suspended prison terms to the accused in many cases, sparking controversy over the justice system....
According to the sentencing guidelines, those receiving 50 million or more in bribes will be given at least three years and six months in prison if convicted and will not be allowed to enjoy suspended jail terms. In addition, those taking more than 500 million won in bribes may face life imprisonment, with a minimum sentence calling for seven years in jail. The harsher punishment rules certainly reflect the Supreme Court's strong willingness to get tough with corrupt politicians, bureaucrats and businessmen.
What should California do with its (former) juve killer?
This New York Times piece, headlined "A Killer at 16, and Still in California’s Juvenile Justice System Decades Later," documents a notable case that perhaps lacks any easy solution. Here is how the piece starts:
Except for one detail and one horrifying crime, Donald Schmidt is a run-of-the-mill juvenile offender. He watches television, does chores, talks to his lawyer and waits for his release.
Donald Schmidt, 37, molested and drowned a 3-year-old girl. The detail is his age: Mr. Schmidt is 37, the oldest defendant ever in California’s juvenile justice system. Just 16 when he molested and drowned a 3-year-old girl while high on methamphetamine, he has been in juvenile facilities for two decades, sometimes alongside teenagers who were not yet born when he was convicted.
Under California law, juvenile offenders who commit serious crimes can be kept in the system until they are 25. Mr. Schmidt’s detention, though, has been extended under a rarely invoked state code that allows continued detention if a jury finds the inmate has a “mental disorder, defect or abnormality that causes the person to have serious difficulty controlling his or her dangerous behavior.”
Because Mr. Schmidt was convicted as a juvenile and continued to be held under the mental health code, he cannot be transferred to an adult facility.
The code requires such petitions for extended detention to be renewed or rejected every two years. On Tuesday, prosecutors will again go to trial to argue that Mr. Schmidt should remain in juvenile custody, an argument they have made repeatedly, and successfully, since 1997, when he was first eligible for release. “We believe he’s a psychopath,” said Bob Lee, the district attorney in Santa Cruz County. “And we believe has he has no regrets or remorse for his conduct.”