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May 13, 2009

You make the call: should PA file a brief in Graham and Sullivan

This new article from the Pittsburgh Tribune-Review, which is headlined "U.S Supreme Court may alter juveniles' life sentences," spotlights why Pennsylvania will be very interested in the two juve LWOP cases, Graham and Sullivan, recently taken up by the Supreme Court (basics here and here):

Civil-rights advocates are cautiously optimistic that the days of sentencing juveniles to life in prison with no chance of parole could soon end.  Their hope lies with the U.S. Supreme Court, which said this month it would review two cases from Florida in which juvenile offenders claim their life sentences — one for rape, the other for robbery — are unconstitutional.

Legal experts cautioned the court could rule in a number of ways, and said some outcomes might not change Pennsylvania's sentencing guidelines.  But they added that if the court rules life sentences for juveniles are inhumane, the effect on Pennsylvania — which has about 450 juvenile lifers, more than any other state — could be huge.

"The impact here would be significant, profound and immediate," said Bradley Bridge, an attorney with the Defender Association of Philadelphia who opposes sentencing juveniles to life in prison without parole. "We would go back into court rapidly, seek to have all of the juvenile life sentences ruled unconstitutional, and have them re-sentenced."...

Justices could rule in various ways, according to legal experts.  For example, the Supreme Court could uphold the sentences, or deliver an opinion specific to non-lethal crimes.  All of Pennsylvania's juvenile lifers were convicted for first- or second-degree murder, Bridge said.  Another possible outcome: The court could set an age limit determining when such sentences are inhumane.

For the sake of discussion, I encourage readers to imagine being in the role of a leading legal actor in Pennsylvania — say, Attorney General or the Governor's legal counsel.  How would you assess and decided whether and how Pennsylvania might participate in the Graham and Sullivan cases? 

At one level, you have to realize that if SCOTUS rules for the defendant in either or both cases, there will be lots of (costly and cumbersome) follow-up litigation in the state.  At another level, however, you might be supportive of the idea that juve LWOP should not be possible for non-murder crimes, and might want to encourage the Justices to make an explicit constitutional distinction between LWOP for murder and LWOP for other crimes.  So, might you urge advocating in support of Florida's extreme use of juve LWOP in these non-murder cases, or perhaps instead urge supporting the defendants in a brief that encourages the Justices to draw a constitutional line that could help preserve the law in the Keystone State?

Of course, Pennsylvania might opt not to participate at all, and perhaps any state considering getting involved should fear that a decision to participate could prompt certain Justices to want to issue a broader ruling than the facts in Graham and Sullivan demand. 

So dear readers, should Pennsylvania (and other states) jump into the Graham and Sullivan juve LWOP fray?

Other recent posts on Graham and Sullivan:

May 13, 2009 in Graham and Sullivan Eighth Amendment cases | Permalink | Comments (24) | TrackBack

Spring issue of FAMMGram now available

I just received via e-mail this note from the folks at FAMM detailing the contents of its latest newsletter:

The FAMMGram still includes all of the latest sentencing information you expect from FAMM. Click here to thumb through the pages, which you can download and print.
Top stories include:
Stars align for sentencing reform -- From the White House to State Houses across the country, sentencing reform is becoming a reality.
Seizing the moment for justice -- Federal lawmakers push legislation to address the sentencing and criminal justice crisis.
New York leads the way for states embracing sentencing reform -- Lawmakers can no longer ignore skyrocketing prison populations, high costs and ruined lives.

May 13, 2009 in Mandatory minimum sentencing statutes | Permalink | Comments (0) | TrackBack

"Determining When Severe Mental Illness Should Disqualify a Defendant from Capital Punishment"

The title of this post is the title of this piece from Bruce Winick appearing on SSRN. Here is the abstract:

The American Bar Association and other professional organizations have adopted policy statements calling for an exclusion from capital punishment for those with severe mental illness at the time of the offense. If this policy is adopted, either legislatively or judicially under the Eighth Amendment, a procedural question would arise concerning how this mental illness/capital punishment exclusion issue is determined.  Should the issue be determined by pretrial motion made to the trial judge or a special jury convened for this purpose?  Should it be determined by the capital jury at the penalty stage that would follow conviction for a capital crime?

This Chapter analyzes the various factors that should be considered in resolving the procedural question of how this exclusion from capital punishment should be determined, and argues that Eighth Amendment values and considerations of accuracy, cost, and therapeutic jurisprudence all tilt strongly in the direction of having the issue decided pretrial by the trial judge.  The chapter then examines whether having the trial judge make the determination would be inconsistent with Ring v. Arizona (2002), which reflects the Sixth Amendment’s constitutional preference for jury determinations of disputed issues of fact in capital sentencing.  Finally, the chapter analyzes whether the prosecution or the defense should have the burden of persuasion on the Eighth Amendment question, and by what standard of proof that burden should be carried.

May 13, 2009 in Death Penalty Reforms | Permalink | Comments (2) | TrackBack

May 12, 2009

Still more disturbing details emerging (and not emerging) from Kent sentencing

The more I learn about the crimes and sentencing of former federal judge Samuel Kent, the more troubled I am about how this case has been handled by federal prosecutors and the presiding federal judge.  And I remain especially aggravated that Kent will probably end up serving less than two years in federal prison while far less advantaged individuals are serving much more time for seemingly much less serious crimes.

Consider first this potent victim statement post on-line by the Houston Chronicle.  It details how extensively Kent sexually abused one particular court employee, how "he hurt so many people in so many ways," and how his decision to lie repeatedly about his criminal acts further exacerbated the harms suffered by his victims.

Now consider an excerpt from this potent post by lawyer Tom Kirkendall, who attended the sentencing and asks some keen and important questions about how this case was handled by everyone involved:

The first hour or so of the hearing was stupefying as prosecutors and Kent defense attorney Dick DeGuerin argued over objections to the government's pre-sentencing report. The main reason for the boredom was that, for the most part, no one except the lawyers in involved in the case and U.S. District Judge Roger Vinson knew what they were talking about. That vacuum of information was a direct result of Judge Vinson's dubious decision to keep a substantial amount of the information about the charges against Kent under seal and away from public scrutiny.

Judge Vinson's decision in that regard might have been somewhat defensible had the two victims of Kent's sexual assaults requested secrecy to preserve what little privacy that they could salvage from this ordeal. But neither of the victims requested such treatment, and my sense is that Kent didn't want it, either.

So, Judge Vinson decided to conduct this case largely outside the public eye for his own reasons. In my 30 years of practicing law, I have never seen the volume of information in a case placed under seal as was done in this case.

In sentencing Kent, Judge Vinson claimed that he was upholding the justice system by showing that even a powerful judge is not above the law. Unfortunately, he undermined that same system by preventing the public from learning the details of the accusations against Kent and Kent's responses to those allegations. Although the first part of the hearing could have induced a snooze, the pace picked up dramatically when the two victims of Kent's assaults made their way to the podium to make their victim statements to the court. Both victims were extremely impressive in their presentations, describing the emotional and family carnage that Kent's assaults and abuse of power caused.  We also learned tidbits of information that likely would have been already been revealed had Judge Vinson not maintained such tight control over information... [including that a] "culture of fear" existed among employees at the Galveston federal courthouse as a result of Kent's manipulative behavior and frequent drunkenness....

[N]ow it appears that Kent was drinking heavily for much of the past decade and that he was frequently intoxicated while at the courthouse.... Where were Kent's "friends" who knew about his excessive drinking and other personal problems, and were in a position to intervene and help him before it was too late?

What are we to make of the federal government's human resources apparatus that an entire federal courthouse could have been placed under a culture of fear by the abusive behavior of one man?

And doesn't the Fifth Circuit Judicial Council have some explaining to do on why it issued its agreed order of public reprimand of Kent without interviewing either of the victims during the council's investigation?

Finally what are we to conclude about our justice system that the Houston Chronicle -- which, along with its coverage of Hurricane Ike, should have been won a Pulitzer Prize for its reporting on the Kent case -- provides much more information to the public about the crimes of an abusive judge than the prosecution of that judge?

Related posts on the Kent proceedings:

May 12, 2009 in Celebrity sentencings | Permalink | Comments (15) | TrackBack

FSR issue on "second look" sentencing reforms now on-line

I am very pleased to report that the latest issue of the Federal Sentencing Reporter is available on-line. The issue is focused on "second look" sentencing reforms, and is largely a product of the efforts of Margaret Colgate Love. Thanks to Margy's extraordinary organization work, FSR has the honor of devoting an entire issue to the proceedings and papers from the Roundtable on “Second Look” Sentencing Reforms organized by the American Bar Association Commission on Effective Criminal Sanctions.

The major articles of this latest FSR issue are listed below and can be accessed electronically here.  (A full subscription to the Federal Sentencing Reporter can be ordered on-line here.)



Other recent FSR issues:

May 12, 2009 in Recommended reading | Permalink | Comments (3) | TrackBack

"Ohio judge sentences 2 teens for sexting"

The title of this post is the headline of this local article reporting the latest sexting sentencing news.  Here are the particulars:

Two Ohio teenagers caught sending or possessing nude photos on their cell phones have been ordered to surrender their phones, perform 100 hours of community service and receive counseling.   A Warren County Juvenile Court judge on Monday also sentenced one of the teens — a 15-year-old boy — to 30 days of house arrest.  The other teen, a 15-year-old girl, must write a paper detailing the dangers of "sexting."

I discovered that the local county prosecutor involved in this case issued this press release yesterday concerning these sentences.  Here are sections of the release, which provides more legal background and a notable quote:

The two Mason teens charged with sending and possessing nude photos on their cell phones, an act known as “sexting,” were sentenced today in Warren County Juvenile Court. The teens admitted to charges of contributing to the delinquency of a minor, misdemeanors of the first degree....

“This is a just and adequate punishment,” Warren County Prosecutor Rachel Hutzel said. “It sends a message to the teens of Warren County that this is not a joke, this is a serious issue that can have long lasting consequences. At the same time if these teens comply with the terms of their sentence their records will be expunged and this will have no legal impact on their adult lives. We are pleased with the standard that the judge set,” Hutzel added.

Some recent related "sexting" posts:

May 12, 2009 in Sex Offender Sentencing | Permalink | Comments (8) | TrackBack

My kind of drunk driving sentence ... in Norway

I was intrigued and pleased to see this press report, headlined "Big fine follows short drive," discussing a noteworthy drunk driving sentence handed down recently in Norway:

A Norwegian businessman was ordered on Tuesday to pay a fine of 700,000 kroner for driving 400m while drunk, a court said.  Due to the man's wealth, the court in the southern Norwegian county of Aust-Agder handed down a heavier-than-usual sentence, which would normally be equivalent to a month-and-a-half's gross salary for the accused.

"The principle of proportionality implies that we should take into account the entire wealth of the person in cases where the defendant is more well off than most other people," a copy of the verdict obtained by AFP read.

The 49-year-old man is the heir of a rich shipping family.... The man was also ordered to take part in an alcohol rehabilitation programme — failing which he will have to serve 18 days in jail — and he had his driver's licence suspended for two years and three months.

The man was arrested in October 2008 after he was found to have more than nine times the permitted blood-alcohol level an hour after he was stopped by police. The man told the court that he had only driven 300 to 400m, and that, aware of his condition, he was going to meet friends to ask them to take him home.

As regular readers know, I am a fan of alternatives to incarceration and also a fan of tougher sentences for drunk drivers (primarily in the hope of achieving a measure of general deterrence for what seems like a deterable crime).  Thus, making a rich very guy pay over $100,000 even for a short drunk drive sounds about right (I think I the kroner/US dollar exchange rate is about 7:1).  Moreover, not only has this sentence made international news, it also has netted Norway's government a nice chunk of change that it can use on rehabilitation programming or other crime prevention measures.

May 12, 2009 in Criminal Sentences Alternatives, Sentencing around the world | Permalink | Comments (4) | TrackBack

Charges dropped against Paul House of House v. Bell fame

This AP piece, headlined "Charges dropped against former TN death row inmate," provide the rest of the story of a notable SCOTUS case from a few years back.  Here is how it starts:

Prosecutors dropped charges on Tuesday against a former inmate who spent two decades on Tennessee's death row before the U.S. Supreme Court questioned his guilt.

Prosecutors acknowledged in a surprise petition that new evidence raises doubts that Paul House acted alone in the 1985 death of a young mother and clouds his possible role. House, who spent 22 years on death row, has been under house arrest while awaiting a new trial.

May 12, 2009 in Death Penalty Reforms | Permalink | Comments (22) | TrackBack

Split Ninth Circuit rejects Commerce Clause challenge to possession of body armor crime

A Ninth Circuit panel today split over an interesting Commerce Clause issue relating to a federal criminal statute in US v. Alderman, No. 07-30186 (9th Cir. May 12, 2009) (available here).  Here is how the majority opinion starts:

This case of first impression in the Ninth Circuit requires us to consider whether Congress has the authority under the Commerce Clause of the United States Constitution, art. I, § 8, cl. 3, to criminalize the possession by a felon of body armor that has been “sold or offered for sale in interstate commerce.” 18 U.S.C. §§ 931 and 921(a)(35)..... We conclude that we are bound by [SCOTUS and Ninth Circuit] precedent — absent the Supreme Court or our en banc court telling us otherwise — and that the felon-in-possession of body armor statute passes muster.

May 12, 2009 in Who Sentences? | Permalink | Comments (1) | TrackBack

A pair of notable and important rulings in another sad child porn downloading case

I just received a copy of a pair of notable (and notably brief) rulings from a federal district court here in Ohio in yet another sad child porn downloading case.  The two rulings in US v. Szymanski, No. 3:08 CR 417 (N.D. Ohio 2009), can be downloaded below, and they address  (1) the authority of a district court to sentence below the statutory mandatory minimum in a receipt/possession child porn case, and (2) the first has to do with the authority of a district court to stay a sentence pending appeal.  Here are snippets from each opinion that spotlights some of the reasons they are so interesting:

The specific question raised in the instant case is whether this Court can sentence Defendant below the mandatory minimum of five years, or stated differently, whether the mandatory minimum is grossly disproportionate to the crime.  A district court is not authorized to sentence a defendant below the statutory mandatory minimum unless the Government files a substantial assistance motion pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1, or a defendant falls within the safety valve of 18 U.S.C. § 3553(f).  However, neither of these “outs” are available in a child pornography case under 18 U.S.C. § 2252.....

Defendant argues that the mandatory minimum sentencing scheme of § 2252(b) conflicts with the Court’s mandate to fashion a sentence under § 3553(a).  It appears the Sixth Circuit has not yet evaluated the potential conflict between mandatory minimum sentences and the factors under § 3553(a) through the lens of the Supreme Court’s decision in Booker and its progeny.  This conflict is important because, in this case, the Court finds that the mandatory minimum exceeds a fair and just sentence that is sufficient but not greater than necessary to comply with § 3553(a)....

The problem [of unwarranted disparities] is especially apparent in a case like this where the differences between the receipt of child pornography and the possession of child pornography is a distinction without a difference.  Yet one carries a mandatory minimum of five years while the other has none.  Conduct which could apply to either statute necessarily results in the potential for gross disparities in sentences....

This tension between possession and receipt effectively places in the prosecutor the ability to determine the defendant’s sentence, a role reserved for the judiciary.  In short, a prosecutor through a charging decision controls the sentencing range in cases involving the possession and/or receipt of child pornography.  This Court believes the Sixth Circuit should determine, at least in this context, whether mandatory minimum sentences violate the separation of powers since the advent of Booker and is progeny.

Download Szymanski Sentencing Memorandum

A defendant can be released pending appeal under 18 U.S.C. § 3145(c) if the Court finds “it is clearly shown that there are exceptional reasons why such person’s detention would not be appropriate.”...  For the above reasons, as well as those expressed at the Sentencing Hearing and in the other post-hearing Orders which detail the reasons for a downward variance, this Court finds it appropriate under the circumstances of this case to stay execution of the sentence pending appeal. Defense counsel shall notify this Court upon the conclusion of all appeals at which time Defendant shall report either to the Marshals for service of his sentence or to this Court for resentencing.

Download Szymanski Order re Release Pending Appeal

May 12, 2009 in Mandatory minimum sentencing statutes | Permalink | Comments (16) | TrackBack

Lots of new SCOTUS nominee posts at The Volokh Conspiracy

The bloggers at The Volokh Conspiracy have a bunch of notable new posts (with links and comments) on SCOTUS nominee buzz:

In addition, any and all Wikipedia fans will want to check out this start of what looks to be a series of posts on from an "administrator on the site and a member of the in-house Arbitration Committee."

May 12, 2009 in Who Sentences? | Permalink | Comments (1) | TrackBack

Revised discussion of criminal justice plans on White House website

Though perhaps this is old news, I just noticed that the discussion of criminal justice issues has changed over at the Civil Rights webpage on WhiteHouse.gov.  As detailed in this old post, this webpage used to take a bullet-point approach to describing agenda items, and the key bullet points were "Reduce Crime Recidivism by Providing Ex-Offender Support"; "Eliminate Sentencing Disparities"; "Expand Use of Drug Courts."  Now this page has just this paragraph with a single heading:

Lead Criminal Justice Reform

The President will lead the fight to build a more fair and equitable criminal justice system.  He will seek to strengthen federal hate crime legislation and will work to ensure that federal law enforcement agencies do not resort to racial profiling.  He supports funding for drug courts, giving first-time, non-violent offenders a chance to serve their sentence, if appropriate, in drug rehabilitation programs that have proven to work better than prison terms in changing behavior. President Obama will also improve ex-offender employment and job retention strategies, substance abuse treatment, and mental health counseling so ex-offenders can successfully re-join society.

I am not sure the changed text suggests any formal changes in policy plans.  However, the prior text stated expressly that President Obama and VP Biden favored completely eliminating the crack/powder sentencing disparity.  It is somewhat peculiar that the crack/powder discussion has now itself been completely eliminated from WhiteHouse.gov even though Obama's Justice Department has now urged Congress to completely eliminate the crack/powder disparity.

Meanwhile, I cannot help but use this opportunity to spotlight, yet again, that President Obama has completely failed to make any use of his clemency power, even though a few strategic clemency grants would present an especially effective means to show he was genuinely committed to "lead[ing] the fight to build a more fair and equitable criminal justice system" and to "giving first-time, non-violent offenders a chance" to avoid excessive and ineffectual prison terms.  I stress this point again and again because, though President Obama has been very active in his first 100+ days on so many other issues, when it comes to hope and change for the federal criminal justice system, he can and should be assailed for being all talk and little action.

Some old and new related posts:

May 12, 2009 in Criminal justice in the Obama Administration | Permalink | Comments (9) | TrackBack

How do you say Mistretta with a scottish brogue?

This year marks the 20th anniversary of the Supreme Court's decision in Mistretta, which declared that the basic institutional structure for the creation of the federal sentencing guidelines were constitutional.  And now, as detailed in this brief report, it appears that there is now a similar constitutional debate about sentencing guidelines in Scotland:

Top judges are attacking "fundamentally unacceptable" Scottish Government plans for a new body to draw up guidelines on sentencing. The country's two most senior judges will tell MSPs the plans are unconstitutional and would undermine judicial independence.

Additional details on this sentencing debate can be found in this BBC story.  (Now, if I can just figure out a way to get invited to Scotland to participate this important sentencing debate, ideally while playing at St. Andrews or some other classic golf course.)

May 12, 2009 in Sentencing around the world | Permalink | Comments (0) | TrackBack

May 11, 2009

A favorite footnote of the day

M6268 Though not of any consequence to the ruling in the case (or really to anything else), I could not resist a little monkeying around by spotlighting here a favorite footnote from a Third Circuit panel ruling in a capital case today.  Here is the textual paragraph for context and then the footnote: 

After a psychiatric evaluation, Hammer presented an insanity defense. A forensic psychiatrist testified that Hammer suffered from dissociative identity disorder (formerly known as multiple personality disorder) and that one of his alter personalities[FN2] killed Marti; therefore, the defense argued, Hammer himself was not legally responsible.

[FN2] The defense’s forensic psychiatrist testified that Hammer had four alter personalities: 1) Jocko, a violent male; 2) Tammy, a female; 3) Wilbur, a child; and 4) Jasper, a chimpanzee.  He contended that Jocko killed Marti.

Here is my follow-up question: how exactly could the forensic psychiatrist know that the "Jasper" alter personality was a chimp and not, say, a gorilla or a baboon?   I have to assume that "Jasper" was not a talking chimpanzee, so how exactly was he able to inform the forensic psychiatrist concerning which member of the ape/monkey family belonged to? 

I guess I will just never fully understand forensic psychology.

May 11, 2009 | Permalink | Comments (19) | TrackBack

Lots of criminal cases on the SCOTUSblog watch list

I see from this new post at SCOTUSblog that the folks over there have about a half-dozen criminal law cases among the group on their list of “Petitions to Watch” that are up for consideration at the Justices’ private conference on May 14.  I suspect that only a few of the cases listed there will produce a cert grant, and I am rooting hard for the Supreme Court to take up Dunphy, a case noted here concerning the application of the crack retroactivity rules.

I would be interested to hear if others have favorite criminal issues from the SCOTUSblog watch list or elsewhere lurking in the cert pool.  On this front, consider this lengthy post from Crime & Consequences, titled "A Ninth Circuit Stinker Goes to SCOTUS."

I think the Justices still have to grant a good number of new cases in order to have a full Fall of arguments, so I hope everyone will gear up their case pitches before we reach the usual summer slow-down.

May 11, 2009 in Who Sentences? | Permalink | Comments (5) | TrackBack

Notably different new capital statements from state governors

These two afternoon headlines noting statements from Governors in Connecticut and Kansas caught my eye in light of never-ceasing public discussions of death penalty law and policy:

May 11, 2009 | Permalink | Comments (1) | TrackBack

More (disturbing?) details emerging about crimes and sentencing of former Judge Kent

The US Department of Justice has this official press release concerning today's federal sentencing of former federal judge Samuel Kent.  It provides this summary review of the charges involved in Kent's indictment and plea:

U.S. District Judge Samuel B. Kent was sentenced today to 33 months in prison for obstruction of justice related to an investigation of a judicial misconduct complaint filed against him....

On Aug. 28, 2008, a grand jury in the Southern District of Texas indicted Kent, who was at that time a sitting U.S. District Judge for the Southern District of Texas, on two counts of abusive sexual contact and one count of attempted aggravated sexual abuse for his alleged assaults in 2003 and 2007 on an employee of the Office of the Clerk of Court identified as Person A.  On Jan. 6, 2009, the grand jury returned a superseding indictment against Kent.  The superseding indictment incorporated the original charges and added three counts: one count each of abusive sexual contact and aggravated sexual abuse, based on Kent’s alleged repeated assaults on another U.S. District Court employee identified as Person B, and one count of obstruction of justice, based upon his obstruction of the Fifth Circuit’s investigation into a misconduct complaint filed by Person A.

On Feb. 23, 2009, Kent pleaded guilty to obstructing the judicial misconduct investigation into his sexual assaults. As part of his plea, Kent admitted that in both 2003 and 2007, he engaged in non-consensual sexual contact with Person A without her permission. He also admitted that he engaged in non-consensual contact from 2004 through at least 2005 with Person B without her permission.

Kent was also ordered to pay a $1,000 fine as well as restitution of $3,300 to Person A and $3,250 to Person B.  Kent was ordered to surrender on June 15, 2009.

The fact that Kent was allowed, on the eve of trial, to plead guilty to only a single obstruction count has always disturbed me.  And information emerging from this new Texas Lawyer article about the sentencing reinforces many of my concerns:

The sentencing hearing included testimony from two former courthouse employees who alleged Kent had assaulted them.  Cathy McBroom, Kent’s former case manager, told Vinson, “I will forever be scarred” by what happened to her in Galveston.

She said that she would avoid Kent at the courthouse when he was intoxicated. “Being molested and groped by a drunken giant is not my idea of an affair,” McBroom said, noting that Kent falsely told others that she was pursuing him.

 The other woman, Donna Wilkerson, who worked as Kent’s secretary, said Kent “maliciously manipulated and controlled everyone around him.” She also said, “My life is forever changed.”

Hmmm... and restitution awards of a few thousand dollars are supposed to be fitting in this case?  For that matter, while I am asking questions about the outcome here, since Kent was allowed to plead only to an obstruction count, I am not sure of the basis for awarding restitution since, technically, the two women that Kent molested were not actually victims of his act of obstruction.  In the end, though, according to the Texas Lawyer article, it seems that the victims are content with outcome:

Following the sentencing, both women said they were pleased with the sentence, with McBroom noting, “You don’t have to put up with it, no matter who the person is.”

Related posts on the Kent proceedings:

May 11, 2009 in Celebrity sentencings | Permalink | Comments (5) | TrackBack

Lots of ink spilled about denial of en banc review in California capital case

Today the Ninth Circuit officially denied en banc review in a high-profile capital case from California, and some of the judge involved felt compelled to write over 100 pages of dense text about the decision.  All this discussion concerning the claims of defendant Kevin Cooper can be found at this link.  

The leading opinion dissenting from the the denial of en banc review starts with this significant first sentence: "The State of California may be about to execute an innocent man." 

Those who closely follow capital punishment in California know that this sentence cannot be quite right:  California has not been able to execute even an indisputably guilty man in over three years because of litigation over the state's lethal injection protocols.  Because of that on-going litigation, California is surely unlikely to "be about to execute" anyone for many more months (and perhaps even many years).

UPDATE:  I have now noticed that the Third and Fourth Circuits also both have rulings today in death penalty collateral appeals.  I wonder how often we get three capital habeas rulings from the federal circuits courts and none of them come from either the Fifth or Eleventh Circuits.

May 11, 2009 in Death Penalty Reforms | Permalink | Comments (8) | TrackBack

Any predictions on former Judge Sam Kent's sentence? UPDATE: 33 months

This article in today's Houston Chronicle indicates that former federal judge Samuel Kent has his sentencing hearing today:

Samuel Kent, who wielded power as a federal judge for 18 years, is very likely to be sentenced to prison today for obstructing justice.  Kent, 59, pleaded guilty in February to obstruction of justice for lying to a judicial committee investigating an allegation he sexually harassed an employee.  The longtime Galveston judge also acknowledged that he’d had nonconsensual sexual contact with two female employees between 2003 and 2007.

Kent came to court this morning with his wife and three others.  He walked through the courthouse front door rather than using the secure back entrance for working jurists.  Prosecutors arrived in court with some of Kent's alleged victims and their attorneys.  The women who brought complaints against Kent cannot testify in court but were interviewed for the pre-sentencing report.

Five criminal charges against Kent related to the sexual contact were dropped.  But all of Kent’s actions are to be considered by Senior U.S. District Judge Roger Vinson of Pensacola, Fla., in determining Kent’s sentence.

The obstruction charge carries a maximum punishment of 20 years in prison.  Prosecutors requested that the man appointed to the bench by President George H.W. Bush in 1990 be sentenced to three years in prison, but Vinson is not bound by that recommendation.

Arthur Hellman, a Pittsburgh-based legal expert in judicial discipline, said Kent’s case will be closely watched.  “It is important because it implicates the ability of the judiciary to police itself,” Hellman said.  “If the sentence is substantially below the three years specified in the plea bargain, some people will say that the judge is going easy on a fellow judge. If the sentence is especially harsh, it will seem that Judge Kent is being made an example because of his position.”...

Judge Vinson handled Kent’s case in a very secretive manner by Houston standards.  Without being asked to do so, Vinson placed a gag order on the lawyers and witnesses to keep the jury from being tainted.  But even after Kent pleaded guilty and there would be no jury, Vinson continued the gag order until media challenged it and Kent could cite no law to keep it in place.  Vinson also had more than 20 sealed events before Kent’s plea.

As I have indicated in prior posts, I fear that former Judge Kent has already been treated too leniently given that he has admitted to illegal sexual conduct with two employees and then lied to fellow jurists when his illegal behavior started to be investigated.  I can think of few other (repeat) sex offenders who would have gotten such a sweet plea deal on the eve of trial and such respectful treatment from the court and federal prosecutors. 

In addition, I sense that the true victims here — the two women subject to former Judge Kent's sexual abuse — have been poorly treated by the federal criminal process despite the recent passage of the Crime Victim Rights Act designed to give them some statutory protections.  I sincerely hope their punishment interests are fully reflected in whatever sentence was recommended by the presentence report and whatever sentence gets imposed by Judge Vinson.

I also hope, writing now as an professor who used this case in a class as an example of the challenges of modern guideline sentencing (see here and here and here), that the guideline calculations in the case become a matter of public record at some point.  Notably, for anyone interested, the students in my class suggested sentences ranging from as low as 6 months and as high as 15 years when I urged them to consider what sentence they might impose without the aid of any guidelines or other sentencing rules beyond the statutory min and max provided for the offense of conviction.

Related posts on the Kent proceedings:

UDPATE:  The article linked above now reports the results of the sentencing: "Samuel Kent, who wielded power as a federal judge for 18 years, was sentenced to 33 months in federal prison today for obstructing justice."  As suggested above, this seems like a pretty lenient sentence given his admitted sexual conduct, but his plea deal revealed that this was all that the federal prosecutors were looking for.  I hope to learn more about the particulars of the proceeding, and I likely will have further comments about this high-profile case if/when more details from the sentencing emerge.

May 11, 2009 in Celebrity sentencings | Permalink | Comments (4) | TrackBack

California bill seeks to eliminate juve LWOP

As detailed in this Sacramento Bee article, which is headlined "Calif. bill would give young killers rehab chance," a California state legislator is seeking to eliminate LWOP sentences for juveniles. Here are some of the interesting particulars:

State Sen. Leland Yee believes that wayward kids should have a second chance to make good - even when they commit murder or other serious crimes.  Yee, a San Francisco Democrat who has a doctorate in child psychology, has introduced legislation that would allow courts to reduce the sentences of inmates who were given terms of life in prison without the possibility of parole when they were minors....

The bill, which is on the Senate Appropriations Committee's agenda on Monday, would allow a prisoner who was sentenced to life without parole as a minor to petition a court for a new sentencing hearing after the inmate had served at least 10 years.

The court would have to grant the hearing -- but not necessarily agree to change the sentence -- if it found that the inmate met at least three of eight criteria.  Those standards include the fact that inmate was an accessory to murder but not the actual killer, did not have prior convictions for assault or other violent crimes and had demonstrated remorse.

Elizabeth Calvin, children's rights advocate with Human Rights Watch, an international group that investigates allegations of human rights violations, said there are about 250 California inmates who are serving life without parole sentences handed down when they were minors....

Scott Thorpe, chief executive officer of the California District Attorneys Association, one of the law enforcement groups that opposes the bill, said the standards that courts must consider in determining whether to grant a new sentencing hearing are too weak.... "You're going to set up a system where hearings are going to be mandated which are mini-trials.... We're just concerned about the cost of this and the ease of which it would be established to have these kinds of hearings. The standards are too low."

It is interesting to speculate — and useful for researchers to follow — whether legislative proposals to eliminate juve LWOP will get more or less traction now that the Supreme Court has decided to take up two juve LWOP cases with its cert grants last week in Graham and Sullivan (basics here).  Importantly, because both Graham and Sullivan involve non-homicide crimes, the Supreme Court is unlikely in those cases to address all uses of LWOP for kids and thus bills addressing juve LWOP more broadly are likely to be very important and consequential no matter what the Supreme Court eventually does in these Eighth Amendment cases.

Some other posts on juve LWOP and on recent SCOTUS grants:

May 11, 2009 in Graham and Sullivan Eighth Amendment cases, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (2) | TrackBack