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September 23, 2009

"Prosecutors Defend False Testimony as 'Truthful, but Inaccurate'"

The title of this post is the headline of this new article in the National Law Journal. Here is how it gets started:

Federal prosecutors in Chicago have asked a judge to reconsider her ruling last month that four convicted drug traffickers deserve a new trial because prosecutors engaged in misconduct.

The prosecutors from U.S. Attorney Patrick Fitzgerald's office on Sept. 18 filed a motion for reconsideration in the case, telling U.S. District Judge Joan Lefkow that the government witness who she determined gave false testimony at the trial actually "was truthful, but inaccurate."  When taking into account additional evidence not cited in Lefkow's decision and viewing the case as a whole, no finding of misconduct is justified, the prosecutors argued.

I wonder if lots of defendants and other accused of perjury will start taking a page from the government's playbook here and explain false statements as being truthful, but inaccurate.  Perhaps John Edwards and Mark Stanford and other politicians who get in trouble might also be drawn to this interesting approach to revising history concerning past statements that prove to be false.

Related post:

September 23, 2009 in Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack

Pastor and city leaders fighting over sex offender working at church in California

This local story out of California, which is headlined "Pastor: San Bernardino council ultimatum is unconstitutional," reports on the fascinating details of a brewing constitutional debate involving churches freedom and local sex offender restrictions.  Here are the basics:

Responding to a demand that First Church of the Nazarene ban registered sex offenders or to stop receiving city money to host a youth facility there, the church's pastor contended the ultimatum is an unconstitutional violation of his religious freedom. "I cannot think of anything more antithetical or repugnant to the fundamental values upon which our nation was founded  — freedom of religion, freedom to worship God without interference from the government, freedom to practice Christianity without oppression," Pastor David Rhone wrote Tuesday in a letter to Mayor Pat Morris and the council.

The controversy follows Monday's revelation — through the leak of a confidential memo — that a man convicted of incest and lewd and lascivious conduct with a person younger than 14 performed work at the First Church of the Nazarene.

A police investigation determined that the man's presence at the church did not present a danger to children or that any new crimes were committed.  Nevertheless, the issue is sensitive not only because San Bernardino is in the middle of election season, but because the church hosts San Bernardino's flagship Operation Phoenix youth center.  That center was managed by Mike Miller until Miller's arrest in July 2008 on suspicion of child molestation. Miller has pleaded not guilty and is incarcerated while awaiting trial.  The church also hosts SOAR Charter Academy and Valley Christian Pre-school.

Rhone said Tuesday that he would rather sever the church's relationship with the city than let the government decide who can attend services, but he does not expect that to come to pass. Instead, he expects the council to take back its demand and apologize.  "They've got to reconsider because what they've asked us to do is unlawful," Rhone said.

But City Attorney James F. Penman, whose investigators spent Tuesday passing out fliers reporting a sex offender had performed work at the church, says the council was within its rights to make demands of Rhone's church.  The city attorney said the council did not take over the church's decisions on which sinners can be preached to. Penman maintained the demand is meant to protect children participating in a city-run program and is a condition on partnering with the city.

Penman also thinks Rhone was irresponsible in allowing a known sex offender to perform work near children's facilities. "There's an old saying that comes out of the Bible: `Who is without sin can cast the first stone.' I don't think Pastor Rhone is a position to cast stones."  For his part, Rhone sees Penman's actions as electoral politics.  Penman is challenging incumbent mayor Morris for the city's top job.

Police Chief Keith Kilmer said Tuesday the mere presence of a registered sex offender in an area does not mandate public notification. "The threshold is when someone poses a risk to public safety and that would be based on circumstances that are happening, (such as) if someone is hanging around a school and they have no business there," Kilmer said.

Despite the Police Department view that children were not threatened while on church property, all five council members who were present Monday night voted to present First Church of the Nazarene with the ultimatum. City Councilwoman Wendy McCammack, who recommended the ultimatum to her colleagues, said Tuesday she's not afraid of any legal challenge. "If it's unconstitutional, then I guess he can sue us," she said. "We have a Constitutional responsibility, local, state and federal, to keep city participants safe."

September 23, 2009 in Sex Offender Sentencing | Permalink | Comments (5) | TrackBack

September 22, 2009

Federal hearing about constitutionality of Ohio's re-execution attempt pushed back months

This local AP story, which is headlined "Second attempt to execute Ohio killer further delayed," documents why the state of Ohio is very unlikely to get another chance to execute Romell Broom anytime soon.  Here are the basics from the AP story:

A federal judge on Tuesday further delayed an unprecedented second attempt to put a condemned rapist and killer to death by lethal injection. U.S. District Court Judge Gregory Frost's order, which pushes a hearing on the fate of inmate Romell Broom from next week to Nov. 30, was unopposed by the state.  It gives the state and Broom's attorneys time to gather more information to argue over trying to execute Broom again for the 1984 rape and murder of a teenage girl he abducted at knifepoint in Cleveland.

Because this initial federal court hearing won't take place until late November (and especially given the state seems in no hurry now to try again to execute Broom), it is quite unlikely that the district court will even issue a ruling before next year and the inevitable appeal to the Sixth Circuit and the Supreme Court could easily extend the Broom case deep into 2010 and beyond.

The really interesting and uncertain question going forward concerns what will happen in other scheduled Ohio executions in the weeks and months ahead.  I believe there are three more executions scheduled in Ohio before the end of 2009.  Especially now that the litigation over Broom's status has been put on a slower track, the hottest lethal injection fights are now likely to focus on the defendants who are scheduled to be executed in October and November.

Related posts on botched Broom execution attempt:

UPDATE:  I noticed here these three telling comments, which were the first responses to this story on Columbus Dispatch website:

Comment 1: November 30th?  Great ruin this poor victim's families holiday season.  One I might add that she hasn't been able to enjoy since 1984.  This scum needed to die way before now.  He has had too many years on this planet.

Comment 2: I find this situation unbelievable, An I/O (interosseous) device is painless, quick and simple to use.  Used everyday in prehospital and clinical settings with great success.  Designed to use when an IV placement is difficult.  Delaying this execution is cruel and unusual punishment for the convict and more so, for the family.

Comment 3: This is astounding!  Put his rear in the chair or line him up on a wall and have target practice with him!!!  What he is 'going through' is nothing compared to the cruel and unusual punishment he put an innocent little girl through!  Heck, if I had access to him, I'd do it myself!!

September 22, 2009 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (16) | TrackBack

State AGs and the Second Amendment incorporation debate

Thanks to law.com, everyone can check out this very interesting piecefrom a California legal newspaper headlined "With 9th Circuit Set to Hear Firearms Case En Banc, Calif. AG Walks Line on Gun Control."  Here are a few highlights:

A hard-fought firearms case is coming to the 9th U.S. Circuit Court of Appeals for en banc arguments Thursday, with the usual gun groups weighing in as amici on the usual sides.

Though the case arose in Alameda County, Calif., home to California Attorney General Jerry Brown, he hasn't submitted briefs. But in another case across the country, involving the same issue, Brown filed an amicus that has gun control advocates shaking their heads. After the 7th U.S. Circuit Court of Appeals decided that the Second Amendment didn't apply to state or local governments — and therefore upheld a local handgun ordinance — Brown joined those asking the U.S. Supreme Court to review the ruling.

The move throws a spotlight on how Brown, a presumed candidate for the governorship, handles this sometimes socially divisive issue. His 7th Circuit brief disappointed — but didn't surprise — Juliet Leftwich, the legal director of Legal Communities Against Violence in San Francisco. "He just stands in stark contrast to Bill Lockyer, who was an active leader in this area," she said....

Chief Deputy Attorney General James Humes said the Justice Department does plenty to stanch the scourge of guns but simply believes in different approaches to the problem. "I would say Jerry Brown is much more interested in law enforcement than legislation," said Humes.

Under Brown's leadership, Humes said the department has seized 1,194 firearms and arrested 87 individuals on California's list of those prohibited from carrying firearms. Authorities have also nabbed people illegally transporting guns into the state after buying them at shows in Nevada. As for the attorney general's position in the 7th Circuit case, Humes calls it a "common-sense" approach. "The Second Amendment exists, and it will exist whether we like it or not," he said....

According to Humes, the AG didn't weigh in on the 9th Circuit case because he agreed with part of the ruling — the panel had simultaneously affirmed the county's right to regulate guns beyond the home, in sensitive public places. Indeed, Brown argued for similar treatment in his 7th Circuit brief.  The attorney general also held up the 9th Circuit panel ruling as evidence that such high court guidance was necessary.

Beyond raising a variety of issues concerning how Jerry Brown is trying to position himself politically, this article raises in my mind of the interesting challenges that Heller and the Second Amendment incorporation debate create for elected state Attorneys General. 

I would surmise all but a few northern and urban places, it would not be politically wise for a state Attorney General to be vocally opposed to individual gun rights and thus it would not be shrewd to come out publically against incorporation of the Second Amendment.  And yet, I also think that most state Attorneys General realize that there are serious legal and practical headaches if (and when?) the Second Amendment is declared applicable as a constitutional limit on any and all state gun restrictions and regulations.  My guess is that, like AG Brown, most state AG will be inclined to dodge this issue as much as possible while perhaps privately hoping that the Supreme Court refuses to incorporate the Second Amendment.

Some related Second Amendment incorporation posts:

September 22, 2009 in Second Amendment issues | Permalink | Comments (3) | TrackBack

"Immigration Prosecutions at Record Levels in FY 2009"

The title of this post is the headline of this new data item from the folks at the Transactional Records Access Clearinghouse (TRAC). Here is how the report starts:

The latest available data from the Justice Department show that during the first nine months of FY 2009 the government reported 67,994 new immigration prosecutions. If this activity continues at the same pace, the annual total of prosecutions will be 90,659 for this fiscal year.  According to the case-by-case information analyzed by the Transactional Records Access Clearinghouse (TRAC), this estimate is up 14.1 percent over the past fiscal year when the number of prosecutions totaled 79,431.

The comparisons of the number of defendants charged with immigration-related offenses are based on case-by-case information obtained by TRAC under the Freedom of Information Act from the Executive Office for United States Attorneys.

These numbers ought to bring a smile to Lou Dobbs and others who are often calling for tougher enforcement of immigration laws.  Whether it amounts to change we can believe in is, of course, a distinct question.   

September 22, 2009 in Criminal justice in the Obama Administration, Detailed sentencing data, Offense Characteristics, Who Sentences? | Permalink | Comments (4) | TrackBack

Notable (and disturbing?) Third Circuit ruling on AEDPA and the Sixth Amendment

The Third Circuit has an interesting ruling today in a habeas case that, though not exactly about sentencing, seems certain to intrigue readers. The opinion in Thomas v. Carroll, No. 06-2282 (3d Cir. Sept. 22, 2009) (available here) gets started this way:

This appeal presents a factual scenario unique in our experience and a legal question for which we have found no precise precedent.

While Appellant Andre R. Thomas was serving a thirty-five year sentence in a Delaware penal institution, he punched a corrections officer and was subsequently indicted under Delaware law for assault.  Prior to trial, Thomas voluntarily and knowingly waived his right to counsel and was permitted to proceed pro se.  However, after the Delaware trial judge (Superior Court) declined to order the production of all the witnesses and documents that Thomas requested, Thomas refused to participate in the trial.  The case proceeded to jury selection and then trial without anyone representing the defense.  On several occasions, the trial judge provided Thomas with the opportunity to return to, and participate in, the proceedings, but he declined to do so.  Ultimately, he was convicted by a jury, sentenced to eight years additional imprisonment, and on direct appeal, the Delaware Supreme Court affirmed.

According to Thomas, his Sixth Amendment rights were violated because the Superior Court conducted the trial without anyone present for the defense.  If we were writing on a blank slate, we might agree with Thomas that a trial under those circumstances is inconsistent with the fair trial requirement of the Sixth Amendment.  However, this case comes to us on Thomas’ petition for a writ of habeas corpus and our inquiry is limited under the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254(d).  Here, the Delaware courts’ conclusion that Thomas’ Sixth Amendment rights were not violated was not contrary to, or an unreasonable application of, clearly established federal law as determined by the United States Supreme Court.  Therefore, we will affirm the District Court’s denial of his petition.

Judge Pollak, sitting by designation, has an intriguing little concurrence in which he observes that, as a result of AEDPA, "there is now no available judicial mechanism for remedying the deficiency that has resulted in what I deem to be a constitutionally flawed conviction and resultant sentence."  That would seem to be a disturbing reality (and thus prompts this adjective in my post title), unless one concludes that Congress via AEDPA was content to allow some constitutionally flawed state convictions to be beyond the remedial reach of federal habeas courts.

September 22, 2009 in Sentences Reconsidered, Who Sentences? | Permalink | Comments (29) | TrackBack

States continuing to consider prisoner release to deal with budget woes

The economic realities of mass incarceration continue to impact state budgets and political debates, as evidenced today by this local feature out of Illinois headlined "Quinn's plan to release prisoners stirs debate." Here are the basics:

There are still a lot of questions about Gov. Pat Quinn's plan to release about 1,000 prisoners to ease overcrowding and help with the state's budget crisis.  Prison reform advocates have been saying it for many years: that states could save billions of dollars by treating instead of incarcerating drug users.  The message is finally hitting home in deficit-ravaged Illinois where the administration of Gov. Pat Quinn plans an early release for 1,000 state prison inmates....

Chicago Police Superintendent Jody Weis wishes there was no need for an early release program."From a law enforcement program, you'd always like to have people stay in jail to compete their sentences," said Weis.

But the Quinn administration — still unable to get a tax increase to offset a $10 billion deficit — says releasing non-violent inmates will save millions, pose no threat to law and order, and begin reform the criminal justice system. "We're not just going to use tax money to throw people in a warehouse and they commit more crimes," said Gov. Quinn.

There would be an initial release of 1,000 inmates, most non-violent drug possession offenders with less than one year remaining on their sentences.  Early parolees possibly would be required to live in their family homes with electronic monitors.

Meanwhile, as detailed in this Columbus Dispatch article, an effort in Ohio to patch a budget hole with gambling monies has run into legal troubles and is prompting renewed talk of prisoner releases as one alternative budget balm:

Not quite three months into the new two-year state budget cycle and already Gov. Ted Strickland and legislative leaders are facing the prospect of filling an $851 million funding shortfall. But so far, no one is offering solutions.

Strickland says he is not yet giving up on electronic slot machines. But if he cannot find another way to quickly get the machines at Ohio's seven racetracks, despite yesterday's Supreme Court ruling that the plan can be subjected to a ballot referendum in November 2010, tough decisions await....

In Illinois, the governor just announced that he would release 1,000 nonviolent prisoners, while Michigan has closed three prisons and the governor wants to speed up the possible parole of 12,000 inmates. California might release more than 20,000 prisoners, and Colorado is talking about letting 3,100 prisoners out early.

In Ohio, Senate Republicans nixed a proposed sentencing overhaul from Strickland that would have allowed most prisoners to get out early by earning up to five days of credit per month, saving $50 million over the biennium.

Some recent related posts:

September 22, 2009 in Scope of Imprisonment | Permalink | Comments (0) | TrackBack

"Plax prison touchdown"

The title of this post is the headline of this little article in today's New York Post.  Here are the basics:

Plaxico Burress is due to turn himself in at 9:30 a.m. today to begin a two-year prison term. The ex-Giant -- who shot himself in the thigh in a Midtown club last November -- pleaded guilty last month to attempted gun possession to avoid serving a mandatory three years if found guilty of possession.  He bought his gun legally in Florida but lacked a New York license.

His time behind bars could drop to 20 months with good behavior. But the self-inflicted wound cost him the $27 million left on his Giant contract.  And under NFL rules, he can't sign with any team until he's completed his term.

As regular readers know, I think the fact that Plax is willingly serving two years in prison for gun possession without even raising a Second Amendment claim is strong evidence that Heller is unlikely to mean much for most law enforcement purposes for quite some time.  Then again, maybe Delonte West is now poised to be a celebrity spokesperson for the Second Amendment.

Some related posts on the Burress cases:

UPDATE:  This New York Times article discusses today's events in state court in which Plaxico official received his two-year prison sentence

September 22, 2009 in Celebrity sentencings, Second Amendment issues | Permalink | Comments (3) | TrackBack

September 21, 2009

Federal stimulus money used to fund native american prison economy

I found this item in the New Mexico Independent quite intriguing as a sign of the economic times. The headline is "Feds release $82 million in stimulus for criminal justice for several pueblos, Navajo nation," and here is how the piece starts:

The U.S. Department of Justice announced Monday the award of $82.29 million in federal stimulus money for criminal justice initiatives in the Navajo Nation and several tribal jurisdictions throughout New Mexico.

The money will go toward everything from constructing and renovating prisons and jails and creating sexual offender registries to combating violence against women, according to a release from the U.S. Department.

Here is a link to the USDOJ press release.

September 21, 2009 in Scope of Imprisonment | Permalink | Comments (1) | TrackBack

"Dying in Vein: Is subjecting an inmate to a failed execution cruel and unusual punishment?"

The title of this post is the headline of this new piece appearing on-line at Newsweek.  Here is how it begins:

Can a vein save a convicted killer?  It the case of Romell Broom — it might. Broom was sentenced to death for raping and murdering 14-year-old Tryna Middleton on Sept. 21, 1984. Broom isn't supposed to be alive to witness the 25th anniversary of Middleton's death — but he is.  Last Tuesday, the execution team at the Southern Ohio Correctional Facility spent several hours trying unsuccessfully to find a viable vein for a lethal injection. Now, Ohio is faced with the difficult task of determining whether it can try to execute Broom a second time, after it botched the first attempt.

Related posts on botched Broom execution attempt:

September 21, 2009 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (11) | TrackBack

Posts of note from The BLT

These two posts from The BLT: The Blog of Legal Times tap into two very different issues that have long been of interest to me (and have been subject to lots of older and newer posts on this blog):

September 21, 2009 in Who Sentences? | Permalink | Comments (0) | TrackBack

An international perspective on the right to remain silent

This article from New Zealand, which is headlined "Crime victims slam right to silence," provides an interesting international perspective on what is often viewed as a cherished American constitutional right.  Here are some highlights:

Crime victims want an end to defendants "hiding" behind the right to silence in court but civil rights experts and defence lawyers argue this would be a serious erosion of human rights.

Sensible Sentencing Trust spokesman Garth McVicar outlined a proposal to ditch defendants' right to silence when he headed up a high-profile conference at Taupo at the weekend. He said at present the law sheltered people accused of serious crimes including murder. "It doesn't mean defendants will be forced to talk it just means if they don't, juries can take it into account."

There were two murder trials involving Waikato people last week where defendants did not take the stand: Joshua Woodcock who was found guilty of the manslaughter of his baby daughter, and the three men found guilty of murdering Waharoa man Ollie Gage in a drive-by shooting.

The Sensible Sentencing Trust's lawyer, former ACT MP Stephen Franks, said New Zealand should follow Britain's lead in allowing police to advise defendants that their silence could be used against them, and in permitting juries to "draw a sensible inference". "There are occasionally valid reasons for invoking the right to silence but it has become part of the ritual game-playing by justice system insiders."

Police-rape complainant Louise Nicholas, who lost her own case but sparked a damning inquiry into police conduct, said the right to silence should be abolished. "Nine times out of 10, the defendant exercises his right to silence, but the victim has to take the stand and have her entire life raked over and her character put under the spotlight," she said.

But the call to remove defendants' right to silence was criticised by two senior Waikato defence lawyers.  Paul Mabey QC said a law change forcing defendants to take the stand would erode a fundamental legal right that the prosecution had to prove the guilt of the defendant. "The right to silence is fundamental and preserved in the Bill of Rights. It's consistent with the presumption of innocence, and no person must prove their innocence," Mr Mabey said.  Defendants "should not be forced to give evidence".... Philip Morgan QC described any push to end the right to silence as "just nonsense, really"....

Ms Collins told the conference: "Law-abiding New Zealanders are sick and tired of seeing their rights eroded and, in many cases, ignored in favour of the rights of criminals. This Government is not standing for that."

Shrewd readers likely know that the US Supreme Court had an interesting discussion of the sentencing aspects of "right to silence" issues in its 1999 ruling in Mitchell v. United States (available here).

September 21, 2009 in Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack

A (questionable?) Eighth Circuit reversal of a reduction in crack guideline retroactivity case

The implementation of the retroactive crack guidelines has produced a lot of federal circuit court rulings, though most have involved a circuit affirming a district court's decision to deny a reduction to a defendant.  But the Eighth Circuit has a ruling today in US v. Collier, No. 08-3306 (8th Cir. Sept. 21, 2009) (available here), in which a panel, upon the  government's appeal reverses a district court's decision to grant the defendant a sentencereduction based on the crack retroactivity provisions.

The particulars of Collier are complicated, but the case especially draws my attention because it would seem ripe for a viable cert petition because the defendant (a) seems relatively sympathetic, (b) prevailed in the district court by getting a lower sentence, and (c) had his reduced sentenced reversed by the Eighth Circuit upon the government's appeal.  As some astute readers may realize, this "abc formula" produced cert grants in Claiborne and Gall and Spears, and perhaps Collier might file a petition to see if he can get the formula to work for him as well.

September 21, 2009 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (9) | TrackBack

A timely examination of data and integration amidst California's corrections craziness

Professor W. David Ball has recently put up on SSRN on this timely analysisof California's sentencing and corrections challenges, which is titled "E Pluribus Unum: Data and Operations Integration in the California Criminal Justice System."  Here is the abstract:

The Stanford Criminal Justice Center (SCJC) recently completed a series of Executive Sessions with state and local officials about integrated criminal justice in California, exploring the ways in which the hundreds of disparate criminal justice agencies across the state might share information and coordinate activity, cooperating across jurisdictional and agency lines to promote common public safety goals.  An integrated criminal justice system, one where information is readily available to agencies when they need it, has several potential advantages: it can promote more efficient use of resources by avoiding duplication of effort; provide greater transparency to policymakers, regulatory agencies, and the public; and produce the evidence necessary to illustrate ways in which existing policies can be improved.

While integration is a crucial part of the future of criminal justice, integration itself is an increasingly important issue in its own right, particularly as governments tackle complex problems that do not confine themselves to particular geographic or jurisdictional areas (e.g. environmental pollution).  As with criminal justice, tackling these problems also requires massive amounts of information and inter-agency and inter-jurisdictional coordination.  Some lessons from the integrated criminal justice context might be relevant here: the importance of agreeing on common metrics, the challenge of getting individual agencies to think about how their information and interventions might be reused, and the importance of ensuring that any proposed changes take ordinary business practices into account. Integrated criminal justice can, at a minimum, illustrate the issues that are likely to arise.

Some recent posts on related issues in California and elsewhere:

September 21, 2009 in Data on sentencing, Detailed sentencing data, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Are there reliable data on the efficacy of chemical castration?

This question in the title of this post is prompted by this interesting new piece out of Australia, which discusses the idea of chemical castration for certain sex offenders.  Here excerpts from the piece:

A recent spate of stories about sex offenders has put chemical castration back in the spotlight, sparking ethical concerns and warnings about its effectiveness.

The group of drugs used for chemical castration stops the actions of sex hormones by blocking testosterone, which underlies sexual impulses and sexual feelings. With reduced libidos, the aim is to reduce the impulse of convicted rapists, molesters and paedophiles to offend again.

But Queensland Council of Civil Liberties president Michael Cope considers chemical castration a human rights abuse, no matter how serious the offender in question is. "We consider it to be cruel and inhumane and it's like the death penalty, as subsequently if somebody's found out to be innocent you can't take it back," he told ABC News Online.

Mr Cope says the whole idea of chemical castration — which has been used across Australia and the world for decades — is based on the wrong premise. "It's not directed at what sex offences are actually about — which is power — which is what most people accept these days. Castrating people and trying to remove their urge is not the answer to it," he said....

But the Royal Australian and New Zealand College of Psychiatrists president-elect, Louise Newman, believes chemical castration, which works as long as the patient stays on the medication, should be considered for the more "hard core" sexual offenders.

"It's certainly not a cure or a way of reducing all risk, but it might be seen as a useful component of treatment or management for some of these very difficult cases, where we're unlikely to see response to other methods," Professor Newman told ABC News Online. "They're not commonly used at all and they are not needed other than in the fairly difficult group of very severe offenders."

This kind of story drive me crazy, because it does not tell me what I really want to know — the article reports that chemical castration "has been used across Australia and the world for decades," but it does not have any discussion how effective this alternative sentence has been.

September 21, 2009 in Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (6) | TrackBack

September 20, 2009

Looking at Lawrence as an Eighth Amendment case

Thanks to this post at CrimProf, I just noticed this intriguing piece by Sheldon Bernard Lyke on SSRN, which is titled "Lawrence as an Eighth Amendment Case: Sodomy and the Evolving Standards of Decency." Here is the abstract:

This Article offers an alternate reading of Lawrence v. Texas, the 2003 U.S. Supreme Court case that struck down the Texas sodomy statute that criminalized private, consensual, and adult same-sex intercourse.  While most scholars discuss Lawrence as a substantive due process case and struggle to find meaning in the ambiguity of the decision’s language, I propose that Lawrence is better read as an Eighth Amendment case.  This Article argues that the majority opinion analyzed the constitutionality of the Texas sodomy law as it would analyze the cruelty and unusualness of a criminal law in an Eighth Amendment evolving standards of decency case.  The Lawrence Court not only used objective indicators to find a U.S. consensus against sodomy laws but was also cognizant of foreign nations that refused to criminalize sodomy.  Additionally, I suggest that the Eighth Amendment and the evolving standards of decency were on the minds of the Justices when deciding Lawrence, and at a minimum, the case was decided in the amendment’s shadow.  The Justices were exposed to an evolving standards of decency analysis in both written briefs and oral arguments, and the majority opinion used language evocative of emergence and evolution. I discuss the importance of this alternative reading of Lawrence and begin a conversation on the possibilities of extending an evolving standard of decency analysis to issues other than sodomy and areas beyond criminal law.

Of course, the Eighth Amendment's actual textual prohibition on the infliction og "cruel and unusual punishments" says nothing expressly about so-called evolving standard of decency.  But, ever since the Surpeme Court coined this felicitious phrase in Trop v. Dulles, this concepts has had a prominent place in Eighth Amendment jurisprudence.

September 20, 2009 in Sentences Reconsidered | Permalink | Comments (7) | TrackBack

Reflective commentaries in the wake of Garrido's crimes

The San Francisco Chronicle today has these two very different commentaries discussing how the California and other jurisdictions ought to react to the Garrido case:

September 20, 2009 in Sex Offender Sentencing | Permalink | Comments (2) | TrackBack