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August 18, 2009

"Criminals 'could be spared jail if they are a parent'"

The title of this post is the provocative headline of this provocative article coming from across the pond.  Here are the details:

Criminals could be spared jail if they are a parent, Scotland's new children's tsar said today.

Children's Commissioner Tam Baillie said judges should consider the impact of prison on an offender's children before deciding whether to lock them up. Sheriffs and judges should have a statutory obligation to take the human rights of an accused's children into account, said Mr Baillie. And the existence of children could "tip the balance" in cases where there is a close decision between a custodial and community sentence.

He said he hopes the forthcoming Criminal Justice Bill will include an amendment, with children's rights added as a factor which must be taken into consideration along with previous convictions. He has reportedly met with justice secretary Kenny MacAskill to discuss the matter.

Mr Baillie told The Herald newspaper today: "The bill has a list of factors which have to be taken into account before sentencing, such as previous convictions, and I think there is the potential to add this to that list. "It is not that it determines the sentence, but in cases where there is a close decision between custody and community, it might be the thing which tips the balance."

He added: "There still has to be the administration of justice but it would help in future if there was more information fed to the courts at the time of sentencing about the impact it will have on children – in particular where the decision is on a knife edge."

The role of the Children's Commissioner is to ensure Scotland fulfils its obligations under the United Nations Convention on the Rights of the Child.

Federal sentencing gurus know that the federal sentencing guidelines include a specific policy statement asserting that "family ties and responsibilities are not ordinarily relevant in determining whether a departure may be warranted."  And, before Booker, whether and when extraordinary parental responsibilities could and should provide a basis for a departure was hotly debated in caselaw.  After Booker, I surmise parental responsibilities sometimes plays a role in sentencing outcomes, though rarely is this role now formally discussed or debated much.

August 18, 2009 in Offender Characteristics | Permalink | Comments (7) | TrackBack

Another notable reversal of a high-profile, white-collar conviction

Though only a little bit of a sentencing story, all white-collar crime folks should be interested in this news out of the Ninth Circuit (via this piece in The Recorder):

The 9th U.S. Circuit Court of Appeals has thrown out Gregory Reyes' conviction for stock option backdating while he was CEO at Brocade Communications Inc. The court ruled that Assistant U.S. Attorney Adam Reeves committed prosecutorial misconduct by saying during closing argument that the entire Brocade finance department was ignorant of the fraud.  "In representing the United States, a federal prosecutor has a special duty not to impede the truth," wrote Judge Mary Schroeder.  Judges Stephen Reinhardt and Louis Pollak, sitting by designation, concurred.

The court also upheld the conviction of Brocade HR director Stephanie Jensen, but remanded for resentencing, saying U.S. District Judge Charles Breyer should not have increased her sentence due to obstruction of justice by her attorney.

The full panel opinion in US v. Reyes is available at this link, though the make-up of the panel makes me wonder whether this case might get en banc review.

UPDATE:  Ellen Podgor comments on the Reyes ruling in this post at the White Collar CrimProf Blog.

August 18, 2009 in White-collar sentencing | Permalink | Comments (3) | TrackBack

Second Circuit panel advocates "more flexible approach" to tough guideline determinations

In an intriguing and potentially very important little ruling today, a (two-judge) panel of the Second Circuit in US v. Dharfir, No. 05-5965 (2d Cir. Aug. 18, 2009) (available here), endorses and seems to urge district judges to adopt a "more flexible approach" to the guidelines when sentencing in cases involving "ambiguous circumstances."  Because of its potential impact in lots of settings, Dharfir should be read in full by folks both inside and outside the Second Circuit.  Here is some of the key language:

Given these ambiguities and the contradictory positions the government took at trial and at sentencing, we believe the judge overlooked another permissible approach under our post-Booker jurisprudence.  In United States v. Crosby, 397 F.3d 103, 112 (2d Cir. 2005), we stated that “precise calculation of the applicable Guidelines range may not be necessary [in making a sentencing determination]. . . . [S]ituations may arise where either of two Guidelines ranges, whether or not adjacent, is applicable, but the sentencing judge, having complied with section 3553(a), makes a decision to impose a non-Guidelines sentence, regardless of which of the two ranges applies.”  “This leeway,” we wrote, “should be useful to sentencing judges in some cases to avoid the need to resolve all of the factual issues necessary to make precise determinations of some complicated matters, for example, determination of monetary loss.” Id; see also United States v. Cavera, 550 F.3d 180, 190 4 (2d Cir. 2008) (en banc) (stating that omission of the Guidelines calculation may sometimes be justified, citing Crosby); see also Cavera, 550 F.3d at 200 n.4 (Raggi, J., concurring) (explicitly reaffirming Crosby’s approach in this regard).

The factual ambiguities in this case present just these circumstances.  The district court was correct that choosing § 2S1.1(a)(2) rather than § 2S1.1(a)(1) would avoid the odd result that Dhafir would receive a lower sentence if the laundered money was “criminally-derived” than if it was “legally-obtained.”  But post-Booker, there was no need for the district judge to pigeonhole the case into § 2S1.1(a)(2) to avoid an illogical result and run the risk of setting a bad precedent; indeed, there was no need for him to choose between the two at all.  We reiterate here that the district court is not bound in ambiguous circumstances such as these to choose one Guidelines range in particular, and is free to take the more flexible – and often, more direct – approach of arriving at a more appropriate sentence outside the Guidelines.  In light of Booker, the judge could simply look at all of the facts, take both suggestions into account, consider the § 3553(a) factors, and come up with a “hybrid” approach if he so chose.

We do not hold that the district court erred in determining that the appropriate Guidelines provision was § 2S1.1(a)(2) or that the sentence was unreasonable; we remand only to permit the district court to consider whether a different sentence would result from the application of this more flexible approach.

As a general matter, I always thought the Crosby court was wise to permit the occassional guideline-calculation dodge as part of proper post-Booker sentencing.  And yet, I am not sure such a dodge is fully consistent with the post-Booker Supreme Court rulings in Rita and Gall, though obviously this Second Circuit panel still thinks "this more flexible approach" is a permissible (and perhaps even a prefered) way to deal with tough guideline disputes.  I'd be very interested to hear when federal sentencing litigants think.

August 18, 2009 in Booker in the Circuits | Permalink | Comments (5) | TrackBack

"Supreme Court's Davis Ruling Raises New Death-Penalty Questions"

The title of this post is the headline of this very effectice piece on the Supreme Court's Davis decision from Time.   The start and end of the piece capture a lot of the dynamic and challenging issues and questions that flow from the Supreme Court's work yesterday:

Under normal circumstances, it takes a case of national importance to rile the Supreme Court during its summer recess.  But in the words of an old axiom of capital punishment, "death is different."  And so, on a sleepy mid-August Monday, Aug. 17, the court — over a strong dissent — dusted off an antique tool, unused for nearly half a century, to force a new hearing into the slow-rolling fate of a Georgia death-row prisoner named Troy Davis.  In the process, the court has opened up new questions about the death penalty: most crucially, how far the courts must go to ensure that an innocent man — as a wide array of politicians, former prosecutors and judges contend Davis is — is not executed....

Among the questions: Is the district judge advising the Supreme Court on how to handle the Davis case, or is the matter now formally in the district court again?  Do the three silent Justices, who signed neither opinion — Chief Justice John Roberts and Justices Anthony Kennedy and Samuel Alito — have a shared view of this unusual action?  (Newly sworn-in Justice Sonia Sotomayor did not participate in the case.)  Is this step a prelude to an official determination that the Constitution forbids the execution of an innocent prisoner, a seemingly obvious assumption that has never been formally declared?  If so, what new filters of trial procedure and judicial review will have to be installed to reach that level of certainty and perfection?  In his dissent, Scalia wrote, "This court has never held that the Constitution forbids the execution of a convicted defendant who had a full and fair trial but is later able to convince a habeas court that he is 'actually' innocent."

The court's August eruption highlights once again the fundamental screwiness of America's death penalty.  In the marble halls of our rational humanity, we demand absolute clarity and justice.  As one of the many judges who has reviewed Davis' case puts it, "I do not believe that any member of a civilized society could disagree that executing an innocent person would be an atrocious violation of our Constitution and the principles upon which it is based." But most murders don't happen in the precincts of the rational or the just.  They happen on the late-night mean streets, where truth is often a figment, and memory is as slippery as the greasy pavement.

Related Davis ruling posts:

August 18, 2009 in Death Penalty Reforms | Permalink | Comments (9) | TrackBack

Supporting a plan that would involve "opening California cell doors"

The Los Angeles Times this morning has this new op-ed that makes arguments in support of cutting California's prison population.  The title and subtitle of this piece highlights its basic themes: " Opening California cell doors can free up needed budget money: Rather than playing to fears that dangerous criminals will be released, state officials should be explaining that a court order to reduce the prison population dovetails with the need to cut costs."  Here are excerpts:

Nearly three years ago, Gov. Arnold Schwarzenegger finally recognized the "conditions of extreme peril" in his state's prisons and declared a state of emergency.  Since then, though, he has done little more to address the problem than to blame the Legislature.  The Legislature, a remarkably fractious, undisciplined and unprincipled body by any measure, in turn has proved effective at blocking good ideas to reduce the prison population — and ineffective at approving any.

So it has been up to the courts.  The genius of the country's founders was to create a system that authorizes federal courts to act when the executive and legislative branches acquiesce — through sins of omission or commission — to blatant constitutional violations.

The court's decision that the state must cut its prison population by 40,000 over two years comes at a propitious moment.  Because of the unprecedented budget crisis, the state must reduce its expenditures — among which prison costs figure greatly.  The fiscal imperative of cutting corrections expenditures thus dovetails with the constitutional imperative of reducing overcrowding.  Reducing the prison population will also free up resources needed to improve medical and mental healthcare and for expanding cost-effective, community-based rehabilitation programs that will in turn help reduce the prison population even further.

Unfortunately, Atty. Gen. Jerry Brown, eyeing a possible run for governor, talks of appealing the federal judges' decision.  That would be foolish.  He should sit down with corrections officials, legislators and other stakeholders to help map out sensible ways to meet the court's order — the court left it up to the state to determine how best to cut the population; for example, by keeping more low-level nonviolent offenders out of prison and by releasing the elderly and disabled.

Instead of pandering to the public's fears, Brown and other state officials should explain that the court order does not mean that dangerous murderers and rapists will be released. Instead, a smaller prison population will enhance community safety, as well as meet the dictates of the U.S. Constitution, common sense and fiscal responsibility.

Some recent related posts:

August 18, 2009 in Scope of Imprisonment | Permalink | Comments (1) | TrackBack

"Sotomayor on losing end in Ohio man's death appeal"

The title of this post is the headline of this AP article detailing what appears to be Justice Sotomayor's first notable vote in what appears to be the last legal hope for an Ohio death-row defendant. Here are the basics:

Sotomayor made what appears to be her first public decision as a justice on Monday, voting unsuccessfully to delay the execution of an Ohio death row inmate.  She voted along with the court's liberal bloc — Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer — to stop the execution of Jason Getsy, whose execution is Tuesday.

In related news, the Sixth Circuit yesterday refused to consider the Getsy case en banc, though the order to that effect, which is available here, included a number of notable dissents.

UPDATE:  This AP article reports that the state of Ohio executed Jason Getsy on Tuesday morning, apparently without any obvious problems relating to Ohio's lethal injection protocol:

Getsy tilted his head to the left and appeared to smile at his aunt and uncle and spiritual adviser before his eyes closed at about 10:19 a.m. His chest rose and fell three times and then he was still.  "Sleep my friend, sleep," said Saundra Cardillo, the wife of Getsy's spiritual adviser.

Warden Phillip Kerns shook Getsy and called his name to see if he was unconscious, as part of prison policy when putting inmates to death.  A member of the execution team re-entered the death chamber and checked the shunts on both arms after the administration of the first drug, which puts inmates to sleep, also part of prison policy.

August 18, 2009 in Death Penalty Reforms | Permalink | Comments (6) | TrackBack

What can and should we take away from the "trial" of Texas Judge Sharon Keller?

I have not closely followed the controversy surrounding Texas Court of Criminal Appeals Judge Sharon Keller because I have never been confident that her actions on the day the Supreme Court granted cert in the Baze lethal injection case — or the vocal complaints about her actions that day — reflected anything more than the usual sturm und drang that surrounds the death penalty in Texas.  Nevertheless, the controversy rages on, as evidenced by this New York Times report on the start of Judge Keller's "trial" yesterday:

The highest-ranking criminal judge in Texas, the woman who presides over the most active execution chamber in the country, sat at a defense table on Monday to face charges of intentionally denying a condemned man access to the legal system.

The judge, Sharon Keller of the Texas Court of Criminal Appeals, took her seat before a gallery crowded with bloggers, lawyers and death penalty protesters.  Outside the courthouse, demonstrators called for her ouster. Inside, lawyers on both sides emphasized that capital punishment was not on trial. 

But to some, Judge Keller has come to embody the practice.  An intensely private former member of the Dallas County District Attorney’s Office, she won election to the court in 1994 and to the post of presiding judge in 2000. She has cultivated a reputation for rulings favorable to the prosecution in death penalty cases.

On Sept. 25, 2007, Judge Keller put in a 10-hour workday and went home around 4 p.m. to meet a repairman. That morning the United States Supreme Court had effectively suspended lethal injection as a manner of execution by accepting a challenge to its constitutionality in a Kentucky case. Largely on the basis of the justices’ action, lawyers for a Texas death row inmate were putting together an appeal to stave off execution. An assigned duty judge was waiting at the courthouse for any last-minute appeal on the inmate’s behalf.

Around 4:45 p.m., the general counsel of Judge Keller’s court called her to relate a request to file paperwork after 5 p.m., the usual closing time for the court clerk’s office. Judge Keller replied that the clerk’s office closed at 5 p.m. A few hours later, the inmate was executed.

As the story behind the execution spread, defense lawyers, editorial boards and legislators called for Judge Keller’s removal. In February, the State Commission on Judicial Conduct filed formal charges. The case was assigned to a special master, Judge David Berchelmann Jr. of the district court here in Bexar County, for the civil fact-finding proceeding that opened Monday.

In written arguments, the commission contends that Judge Keller circumvented normal procedures, which provide for after-hours appeals in capital cases. Judge Keller responds that the lawyers for the inmate, Michael Richard, a convicted murderer who made no claim of innocence, should have filed their paperwork with the assigned duty judge rather than trying to go through the clerk’s office.

The trial, expected to last most of the week, promises to unfold as a finely wrought dance around the details of an afternoon’s timeline.....

A lawyer for Judge Keller, Charles L. Babcock, argued that the entire case amounted to a few innocent, misunderstood words spoken on the telephone. “Judge Keller is an honorable, competent, popularly elected judge who believes in and follows the rule of law,” Mr. Babcock said.

As suggested by the title of this post, I am not sure what to take away from the trial of Judge Keller.  I am sure, however, that Scott at Grits for Breakfast is likely to provide a sober and shrewd perspective on this case.  Consider, for example, this post at Grits, titled "Sharon Keller misconduct trial more about judicial activism than the death penalty."

August 18, 2009 in Who Sentences? | Permalink | Comments (15) | TrackBack

August 17, 2009

The re-leaunch of CrimProf blog

I am pleased to be able to report on an exciting new development in the climinal law blogosphere. Here is the news (with links) from an e-mail I received today from Professor Kevin Cole:

My CrimProf colleagues here at the University of San Diego School of Law — Larry lexander, Don Dripps, Yale Kamisar, Adam Kolber, and Jean Ramirez — and I are happy to report that we have re-launched the CrimProf blog.  You can find our introductory post here and can access the entire site at http://lawprofessors.typepad.com/crimprof_blog/.

We hope to continue the efforts of the blog’s previous editors to make this site a valuable resource for criminal law and procedure teachers.  Please send comments and content suggestions to crimprofblog@gmail.com.

If you would like to receive daily email updates about new postings on the blog, you can “subscribe” by going to the blog at http://lawprofessors.typepad.com/crimprof_blog/ and entering your email address in the column at the left under the heading “News Readers and Feeds."

The "new" CrimProf blog already has lots of new content, including links to lots of new criminal law papers appearing on SSRN.  I made a regular habit of checking the "old" CrimProf blog, and now I suspect that site will be a daily must-read.

August 17, 2009 in On blogging | Permalink | Comments (2) | TrackBack

How many justices decided death and innocence (and original habeas) are different in Davis?

The law geek in me is having a hard time thinking about my upcoming classes because I am so taken by the Supreme Court's fascinating little ruling this morning (discussed here), which addresses the "original" habeas petition In re Troy Davis, No. 08–1443 (S. Ct. Aug. 17, 2009) (ruling available here).  And, as explained below, I have lots and lots of follow-up questions. 

First, consider Kent's effective comments at C&C about the Davis procedural posture:

And now, for something completely different... The U.S. Supreme Court and its individual Justices have the jurisdiction to issue "original" writs of habeas corpus -- "original" in the sense that the petitioner applies directly to the Supreme Court for relief, as opposed to applying to a lower court and then appealing the denial....

The Court used this jurisdiction in the nineteenth century to review cases it had no other way to review, but the power pretty much gathered dust in the twentieth century and, until today, in the twenty-first.  Term after term, every Monday orders list has had one-liner denials of original habeas petitions.... And now comes Troy Davis.

In other words, Fed Court fanatics ought to be excited (or at least intrigued) that SCOTUS has dusted off and made use of its unique "original" powers in this case.  But, dear readers, have these powers been used for good or for mischief?

Second, consider the Court's formal two-sentence ruling in Davis:

The petition for a writ of habeas corpus is transferred to the United States District Court for the Southern District of Georgia for hearing and determination.  The District Court should receive testimony and make findings of fact as to whether evidence that could not have been obtained at the time of trial clearly establishes petitioner’s innocence.

By virtue of this ruling, Fed Court fanatics ought to be excited (or perhaps puzzled) that SCOTUS has ordered a US district court to receive testimony and find facts as to whether Troy Davis, based on "evidence that could not have been obtained at the time of trial," can now "clearly establish[ his] innocence."  But does SCOTUS have the inherent power to make district courts do its "original" work?  On the merits, does Davis has to prevail by a preponderance or by clear and convincing stanard or some other burden of proof?  And will SCOTUS immediately review the "findings of fact" it has ordered or will the Eleventh Circuit take the first "appeal" in this "original" habeas matter?

Third, consider the final paragraph of Justice Scalia's dissent from the ruling in Davis:

Today, without explanation and without any meaningful guidance, this Court sends the District Court for theSouthern District of Georgia on a fool’s errand.  That court is directed to consider evidence of actual innocence which has been reviewed and rejected at least three times, and which, even if adequate to persuade the District Court, cannot (as far as anyone knows) form the basis for any relief.  I truly do not see how the District Court can discern what is expected of it.  If this Court thinks it possible that capital convictions obtained in full compliance with law can never be final, but are always subject to being set aside by federal courts for the reason of “actual innocence,” it should set this case on our own docket so that we can (if necessary) resolve that question.  Sending it to a district court that “might” be authorized to provide relief, but then again “might” be reversed if it did so, is not a sensible way to proceed.

As a matter of pure procedure, I think Justice Scalia makes some strong points.  But only Justice Thomas joined his dissent.

Fourth, consider the final paragraph of Justice Stevens' concurrence in the ruling in Davis:

JUSTICE SCALIA would pretermit all of these unresolved legal questions on the theory that we must treat even the most robust showing of actual innocence identically on habeas review to an accusation of minor procedural error.  Without briefing or argument, he concludes that Congress chose to foreclose relief and that the Constitution permits this.  But imagine a petitioner in Davis’s situation who possesses new evidence conclusively and definitively proving, beyond any scintilla of doubt, that he is an innocent man.  The dissent’s reasoning would allow such a petitioner to be put to death nonetheless.  The Court correctly refuses to endorse such reasoning.

As a matter of pure substance, I think Justice Stevens is reasonable to assert that neither Congress nor the Constitution mean to permit the execution of a once-properly-convicted, but now-obviously-innocent defendant.  But only Justices Ginsburg and Breyer joined this concurrence (and we are told that Justice Sotomayor did not participate in the case).

In short, three Justices made clear via Justice Stevens' opinion that they view death as a punishment and innocence as a claim (and original petitions as a vehicle) to be different in a way that justified the Court's peculiar ruling in this case.  Meanwhile, two Justices made clear via Justice Scalia's opinion that they do not view death as a punishment and innocence as a claim to be different so as to justify the Court's  peculiar (and cursory) ruling in this case.

A big question then remains:  what's up with the other three Justices (aka Chief Justice Roberts and Justices Kennedy and Alito)?  Notably, this troika is made up of the three (swing?) Justices who established the middle-ground position that the Supreme Court adopted in the Baze lethal injection case. 

Based on past votes in tough capital cases, I'd guess that Justice Alito found Justice Scalia's opinion attractive, and that Justice Kennedy was drawn to Justice Stevens' opinion.  But neither put their names on an opinion.  And, because I suspect that the Chief Justice's vote may have been influenced mostly by how the Davis case would reflect on the Court as an institituion, I have a strange feeling that he may have been centrally involved in the decision to punt this matter to the district court.

August 17, 2009 in Sentences Reconsidered | Permalink | Comments (15) | TrackBack

"The Emerging Criminal War on Sex Offenders"

The title of this post is the title of this new article on SSRN from Corey Rayburn Yung (who also runs the terrific blog Sex Crimes).  Here is the abstract for Corey's new piece:

This article addresses four central questions.  First, what is the difference between normal law enforcement policy and a “war” on crime?  Second, assuming such a line can be discerned, has the enactment of the Adam Walsh Child Protection and Safety Act (“AWA”) in combination with other sex offender laws triggered a transition to a criminal war on sex offenders?  Third, if such a criminal war is emerging, what will be the likely effects of such a transition?  Fourth, if such a criminal war is emerging with substantial negative consequences, can it be stopped?

By reviewing America’s history of criminal wars, primarily in the War on Drugs, the article identifies three essential characteristics of a criminal war: marshaling of resources, myth creation, and exception making.  It concludes that the federalization of sex offender policy brought about by the AWA elevated law enforcement to a nascent criminal war on sex crimes.  This change could have repercussions as substantial as the drug war has had on American criminal justice and society.

August 17, 2009 | Permalink | Comments (3) | TrackBack

SCOTUS orders innocence hearing in Troy Davis case

The Supreme Court is making some rare summer news this morning through a ruling in a high-profile capital case.  Here are the basic details from this SCOTUSblog postby Lyle Denniston:

The Supreme Court, over two Justices’ dissents, on Monday ordered a federal judge in Georgia to consider and rule on the claim of innocence in the murder case against Troy Anthony Davis (In re Davis, 08-1443)  The Court told the District Court to “receive testimony and make findings of fact as to whether evidence that could have been obtained at the time of trial clearly establishes [Davis'] innocence.”

Justices Antonin Scalia and Clarence Thomas dissented, and some of their arguments were answered in a separate opinion by Justice John Paul Stevens, joined by Justices Stephen G. Breyer and Ruth Bader Ginsburg.   The new member of the Court, Justice Sonia Sotomayor, took no part in the Court’s action.

The action was highly unusual, because Davis had filed what is called an original writ of habeas corpus — that is, a plea for his release, filed directly in the Supreme Court rather than in lower courts.  Justice Scalia noted in his dissent that the Court had not taken a similar step “in nearly 50 years.” The original writ, petition for certiorari, brief in opposition, and amici filings can be downloaded here.

The action also was unusual because the Court normally does not take actions of this significance during its summer recess....

The Court’s order and Justice Stevens’ separate opinion can be downloaded here. Justice Scalia’s dissent is available here.

The AP has this report on the ruling, which is headlined "Supreme Court says Georgia man should get hearing."

August 17, 2009 in Death Penalty Reforms | Permalink | Comments (17) | TrackBack

August 16, 2009

Is Illinois's new internet ban for sex offenders constitutional?

As detailed in this Chicago Tribune report from last week, Illinois " Gov. Pat Quinn signed new laws Tuesday designed to limit sex offenders' use of technology as a way to find more victims" by making it "a felony for registered sex offenders to use social networking sites."  This CBS News discussion of the new law raises some interesting questions about its potential reach:

"If the predator is supposed to be a registered sex offender, they should keep their Internet distance as well as their physical distance," said sponsor Bill Brady, a Republican state senator, according to the Chicago Tribune. "The object is to protect innocent individuals on the Internet from sex offenders."   If that were its effect, this would be a laudable piece of legislation. But in reality, the state law is written so broadly it would effectively prohibit registered sex offenders from using the Internet.

It says "social networking websites" are off-limits, and defines those as "an Internet website containing profile web pages of the members of the website that include the names or nicknames of such members," or photographs, or any other personal information. Offenders must "refrain from accessing or using" such Web sites.

Unfortunately, the Illinois state legislature didn't seem to recognize that many popular Web sites -- perhaps even the majority of the large ones -- fall into those categories.  Google.com features user profiles, including name, photos and personal information.  So do Yahoo.com, Amazon.com, geek site Slashdot.org, and aggregator site Digg.com.

Sites like Hulu.com, Netflix, and Pandora do too, as do TV.com, MP3.com, and CNET.com. This overly broad scope makes the law vulnerable to a First Amendment challenge. (Those last three are our sister sites and are owned by CBSNews.com publisher CBS Interactive.)

(It is surely coincidence that Bill Brady is a candidate for governor of Illinois, whose campaign biography says: "He fought for and passed legislation to protect children from sexual predators.")

Now, perhaps Brady's intent truly was to ban sex offenders from the Internet, although if that's true you wouldn't know it from the former developer and realtor's public statements on the topic.  Nor was it probably apparent to his colleagues in the state capitol, where the legislation was unanimously approved by both chambers -- or to Gov. Pat Quinn, who signed it into law this week.
Like it or not, using Google, Yahoo, TV.com, and so on is part of modern life, and it's reasonable to hope that even sex offenders could be reintegrated into society rather than cordoned off from it and therefore more likely to relapse.  One Justice Department release says that 5.3 percent of male sex offenders were rearrested within three years after their release from state prison.

Brady's legislation also does not distinguish between violent criminals who have served prison time for rape -- and adults who are registered sex offenders because of youthful hijinks.

It seem that this new law is ripe for constitutional challenge under any number of theories.  The law apparently goes into effect January 1, 2010, but I suspect there will be litigation over its terms getting started sooner.

August 16, 2009 in Sex Offender Sentencing | Permalink | Comments (5) | TrackBack

Are there any must-reads (beyond Heller) for my Second Amendment Seminar?

Regular readers know I am interested in the intersection of the Second Amendment and the criminal justice system in the wake of Heller.  My interest is finding expression this coming fall semester — which starts tomorrow(!) at The Ohio State University Moritz College of Law — through the teaching of a Second Amendment Seminar.

Though I am going to have students help shape the direction and content of the seminar, I want to make sure I cover modern Second Amendment essentials.  But, as I assembled a reading list, I started thinking that the only essential read in the modern corpus is just the Supreme Court's decision in Heller

Of course, there are lots of cases and lots and lots and lots of commentary — both pre-Heller and post-Heller — discussing the Second Amendment.  I plan to cover key post-Heller issues like incorporation and standards of review in the seminar, and I will have students read cases and commentaries on these and other topics.  But I am not sure if anything qualifies as a true must-read for discussing and debating the modern Second Amendment other than Heller itself.

Perhaps readers have a different view, and I would be grateful for any input on the topic in the comments.

Cross-posted at LSI

August 16, 2009 in Second Amendment issues | Permalink | Comments (8) | TrackBack

Examining life sentences (and their connnection to death) in America's heartland

Today's Des Moines Register has this interesting article, headlined "In Iowa prisons, life means life." Here are a few excerpts:

Iowa is one of the most difficult states in the nation for an inmate serving a life sentence to gain release, according to a study issued last month by the Sentencing Project, a Washington advocacy group.

Iowa's three most recent governors have commuted life sentences only nine times in 26 years. At the same time, the population of lifers in Iowa's prison system has risen dramatically, from 162 inmates in 1983 to 617 today, an increase of 281 percent.

Critics want to reduce that number, citing the high cost in dollars - nearly $19 million a year to house current lifers - and in lost human potential. But that notion threatens to disturb Iowa's uneasy truce over capital punishment: Iowa lawmakers have repeatedly rejected the death penalty, but only because "life means life" for the most serious crimes, noted Corwin Ritchie, executive director of the Iowa County Attorneys Association.

The issue highlights the conflict between two deeply held societal views about crime and punishment: that everyone deserves a second chance, and that some crimes against society are so heinous that criminals must forever forfeit their freedom.... Iowa's growing number of lifers reflects a national trend. Throughout the United States, more than 140,000 individuals are incarcerated with life sentences, according to the Sentencing Project report, "No Exit: The Expanding Use of Life Sentences in America." State legislators have stepped up their fight against crime by expanding which crimes result in life sentences, restricting parole and increasing the use of life sentences without parole, the report said....

During the 2009 session of the General Assembly, legislation was introduced to give another chance to some inmates serving life sentences for crimes committed when they were juveniles. It would have allowed them to apply for parole or work release after serving at least 15 years. The legislation was pushed by groups such as the Iowa Coalition to Oppose Life Without the Possibility of Parole for Youth, but it never came to a vote.

Ritchie, who heads the Iowa County Attorneys Association, said his organization continues to support Iowa's imposition of a life sentence without parole for the most serious crimes. "It is an excellent alternative to the problems associated with the death penalty," he said....

State Rep. Clel Baudler, a Greenfield Republican and retired state trooper, said he is willing to consider the possibility of having the Legislature expand parole provisions for lifers, but only if capital punishment is included in the debate: "I truly believe there are some crimes that deserve the death penalty."

Other recent posts on life sentences:

August 16, 2009 in Scope of Imprisonment | Permalink | Comments (4) | TrackBack

"What Prevents the Application of the Thirteenth Amendment in Prison?"

The question of this post is from the title of this new article by Raja Raghunath appearing on SSRN. The full title is "A Promise the Nation Cannot Keep: What Prevents the Application of the Thirteenth Amendment in Prison?" and here is the abstract:

The walls of the prison are not solely physical.  The doctrine of judicial deference to prison officials, which compels courts to defer to the discretion of those officials in almost all instances, obstructs the effective scrutiny of modern practices of punishment.  Since its ratification, the Thirteenth Amendment — which prohibits slavery or involuntary servitude anywhere within the United States or its jurisdiction, except where imposed 'as a punishment for crime whereof the party shall have been duly convicted' — has been seen by courts as one brick in this wall.  This article makes the novel argument that, properly read, the amendment should instead function as a breach in this wall — one of sufficient size to allow some needed light to shine within.

Although in some states inmates may still be sentenced to hard labor, in most systems today they labor under a more general requirement that, if they are able-bodied, they must work.  Reading the word 'punishment' in the Thirteenth Amendment in a manner consistent with the way that same word is used in the Eighth Amendment, and is understood in the rest of the Constitution, reveals that only those inmates who are forced to work because they have been so sentenced — which is not the vast majority of inmates compelled to work in the present day — should be exempted from the general ban on involuntary servitude. In addition to examining the jurisprudence of the Eighth and Fifth Amendments as it relates to this question, this article also details the history of forced labor programs as punishment, and how courts’ reading of the punishment exception is not supported by either the circumstances surrounding ratification of the Thirteenth Amendment, or the ways that courts have construed it as a whole since that time.

This article argues that the reason courts have broadened of the meaning of 'punishment' in the Thirteenth Amendment, while simultaneously narrowing it in the Eighth Amendment, is because these directly contradictory acts of constitutional interpretation both serve the same end of judicial deference to the actions of prison officials, which has resulted in the general abdication by courts of their constitutional obligations to oversee those officials’ actions.  This article also theorizes about the potential outcomes of interpreting the Thirteenth Amendment properly with respect to prison labor, and suggests that the resulting recognition of the punitive purposes that have always driven our prison labor programs may actually lead to an improvement in the overall well-being of prisoners, and perhaps of society as a whole.

August 16, 2009 in Recommended reading | Permalink | Comments (5) | TrackBack