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October 3, 2009

Do women make better sentencing Judges?

The question in the title of this post is inspired by this recent piece at Slate, which is titled "Do Women Make Better Judges? Asked and answered — with data."  The essay is from a group of law professors (who explain their empirical work more fully in this long paper available via SSRN titled "Judging Women" ), and here is the essay's final assessment based on empirical measures of productivity, influence, and independence:

[O]ur basic point is this: The fact that female judges are selected from a shallower pool of talent does not imply that they are worse judges than men.  In fact, the evidence suggests that they are at least as good as male judges, perhaps better.

Though it would be very hard to empirically measure how male and female judges "perform" at sentencing, I suspect some readers may have instincts and/or anecdotes to support or assail the notion that women are perhaps better sentencing judges than men. 

So, dear readers, please share your insights and reactions to the question in the title of this post.

October 3, 2009 in Race, Class, and Gender, Who Sentences? | Permalink | Comments (4) | TrackBack

Even Washington Post editorial board supporting Second Amendment incorporation

I just noticed this recent Washington Post editorial on the Second Amendment incorporation issue.  Notably, the piece call for the Second Amendment to be applied to the states, but then also argues for the Amendment to be interpreted to allow lots of local regulation of guns:

Given how the Constitution has evolved, lawyers from both the left and right of the political spectrum will present strong arguments that the Second Amendment applies to state and local government, just as the First Amendment does.  It would seem at least incongruous -- and may ultimately be legally indefensible -- for residents of the District to enjoy constitutional rights that are withheld from people in Chicago or other parts of the country.

But just as in the District, it will be important for the court to recognize that all rights -- including those of free speech and assembly -- are subject to limits. So should be the right to keep and bear arms.  Any Supreme Court ruling should explicitly recognize the authority of state and local governments to craft regulations to best protect their communities. Gun laws that make sense in a densely populated urban area may be unreasonable or unnecessary to protect the public safety of rural residents.  The justices should allow state and local jurisdictions reasonable flexibility; a civil society must be able to balance the rights of individuals with the compelling interest in maintaining public safety.

I believe the Post has long backed gun control measures, and this editorial thus highlights how nobody is likely to fight hard against Second Amendment incorporation.  Rather, after the Supreme Court decides that the Amendment applies to all levels of government, the big fights will be over what sorts of gun regulations are deemed reasonable.  

Some related Second Amendment posts:

October 3, 2009 in Second Amendment issues | Permalink | Comments (1) | TrackBack

"The American Inquisition: Sentencing after the Federal Guidelines"

The title of this post is the title of this draft article I just noticed on SSRN from Professor Ricardo Bascuas. Here is the abstract:

Despite the series of important Supreme Court sentencing decisions of the past ten years, federal sentencing remains fundamentally inquisitorial.  Although the guidelines are no longer legally binding, they continue to taint the entire federal criminal justice system by needlessly discouraging defendants from exercising their trial right and pressuring them to confess.  Their continued vitality is largely due to Justice Breyer’s persistent view, first as one of the architects of the original guidelines and later as a Supreme Court justice, that sentencing is an administrative problem requiring an administrative solution.  The heart of this solution is that the facts of each case and the appropriate punishment are to be determined not through the parties’ competing presentations, but through a probation officer’s purportedly 'neutral' investigation.  This method of resolving factual issues, together with the guidelines’ harsh penalties for invoking the right to trial and lavish rewards for incriminating others, result in a system that is not only unfair but also intrinsically incompatible with our adversarial system of justice.

Existing scholarship on the Federal Sentencing Guidelines has not examined how the guidelines purposefully discourage exercise of the right to trial and pressure defendants to admit to every allegation against them (and others).  The central role that the United States Probation Office plays has also not been thoroughly examined. Far from undertaking merely ministerial and innocuous tasks, as most of the existing scholarship assumes, probation officers are tasked by the guidelines with the most critical role at sentencing.  Often, they exert far greater influence on case outcomes than defense lawyers and prosecutors. The article concludes that the present sentencing process is unconstitutional but can be easily reformed by restoring control over each case to the parties.

October 3, 2009 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

NY Times editorial on "Botched Executions"

The New York Times this today has this new editorial, headlined "Botched Executions." Here is how it starts and ends:

Ohio’s attempt to execute Romell Broom last month by lethal injection was the death penalty at its most barbaric. Even after that horribly botched failed execution, the state wants to continue putting people to death, starting next week. Ohio should at the very least call a moratorium so it can ensure that it has the technical competence to put people to death humanely. But every state should use this shameful moment to question whether they ought to be putting people to death at all....

We have long believed that capital punishment is wrong in all cases, but even those who support it should not accept cruel procedures. Ohio should halt any further executions until it conducts a comprehensive study of what is going wrong in its administration of lethal injection and what can be done to ensure that a travesty like Mr. Broom’s attempted execution does not happen again.

Ultimately, every state should pause and consider that ending the life of a healthy man or woman is no simple matter and that even in the 21st century, executioners do not have their job down to anything like a science. No government should put people to death until it can show that the condemned person will not be racked with pain, catch on fire or prove so difficult to kill, as in Mr. Broom’s case, that the executioners are forced to try again another day.

Some recent related posts on Ohio lethal injection issues:

October 3, 2009 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (3) | TrackBack

"Killing puts 'castration' on French agenda"

The title of this post is the headline of this article forwarded by a helpful reader that details an on-going sentencing debate in France after a high-profile crime by a sex offender with a criminal history.  Here are the details:

France is considering forcing some sex offenders to undergo chemical castration after a public outcry over the murder of a jogger by a rapist who had recently been released from prison. The prime minister, François Fillon, said the government was looking at legislation on hormonal treatment for offenders after the abduction and killing of Marie-Christine Hodeau.

The 42-year-old, who lived alone with her elderly mother, was snatched on Monday morning while out for her regular jog in a forest south of Paris. Just after 9am, she called police on her mobile phone from the boot of a car, saying she had been grabbed by a man with a knife. She gave the car's number plate, but the call was suddenly interrupted.

Police moved fast to trace the car and its owner, Manuel da Cruz. But for days the French public were gripped as searches did not find the woman. Hodeau's DNA was found under the fingernails of Cruz's left hand and eventually he led police to her naked body, hidden in undergrowth 12 miles from where she was abducted....

Public shock was compounded when it emerged that Cruz, a 47-year-old concierge and father of four, had served seven years of an 11-year-sentence for kidnapping and raping a 13-year-old girl in 2000.  Released from prison on parole, he had moved back to the neighbourhood where his teenage victim lived.

The case has reopened the heated debate on how to deal with reoffenders in France – a favourite subject of President Nicolas Sarkozy, who prides himself on his tough stance on law and order.  This week he met Hodeau's family at the Élysée palace.

When, in reaction to the case, a spokesman for Sarkozy's centre-right UMP party called for wider use of chemical castration, an outraged Socialist party spokesman called the idea "deplorable" and "indecent".  But several ministers have now suggested a discussion on broadening the use of chemical castration....

Chemical castration is a reversible process in which the administration of drugs or injections lowers the sex drive. France, along with a number of other European countries including Sweden and Denmark, already allows the procedure if offenders agree to it. Poland last month approved a law making chemical castration mandatory for some offenders convicted of sex crimes against children. Several US states enforce similar measures.

"Chemical castration exists today, it just depends on an agreement by the person concerned," Fillon said. "We have to look at how, as part of surveillance and control measures after someone leaves prison, we might make this more restrictive, if necessary. It's a subject we are working on and we will make proposals to parliament."

Sarkozy called for the closer supervision of paroled prisoners and a review of France's criminal psychiatry system. But magistrates unions protested after the interior minister blamed the jogger's murder on lenient judges and parole officers.

It is notable and telling, in a European kind of way, that this case is not leading to calls for the return of the death penalty.  It is also disappointing, as I have noted in many prior posts, that there seems to be little or no serious empirical evidence about the efficacy of chemical castration even though this alternative punishment seems to have a significant modern history.

Some related recent posts:

October 3, 2009 in Criminal Sentences Alternatives, Sentencing around the world, Sex Offender Sentencing | Permalink | Comments (24) | TrackBack

October 2, 2009

Lucky in lottery, but not so lucky in law

This local story, which is headlined "Convicted embezzler to forfeit state lottery prize," provides a perfect bit of justice to close down a dynamics sentencing week.  Here are the details:

Paul W. Lyle learned that he won the grand prize in a Kansas Lottery second-chance drawing at his preliminary hearing 11 days ago. Trouble was: The former radio executive was facing a charge of felony theft for embezzling a reported $87,750 from his employer, American Media Investments, which owns three radio stations in Pittsburg, five in Joplin, Mo., and five more in Texas.

The supreme irony: Lyle, 63, the company’s chief operating officer until the theft was discovered in May, confessed that he stole the money to feed an out-of-control addiction to scratch-off state lottery tickets.

Crawford County Sheriff Sandy Horton said investigators discovered $30,457 worth of losing scratch-off tickets in a drawer of Lyle’s desk in his office at KKOW radio station near Pittsburg. Lyle was charged with the offense July 21.

But then his name popped out of the hopper Sept. 20 at the Kansas State Fair in Hutchinson in a “second-chance drawing” for purchasers of losing scratch-off tickets... Estimated value of the total package: $96,000....

As part of the plea bargain, prosecutor Michael Gayoso Jr. said, Lyle has agreed to turn over his entire lottery winnings to help pay the anticipated restitution that American Media Investments will be owed in the case. Lyle is to be sentenced Nov. 30 in Crawford County District Court.

October 2, 2009 in Criminal Sentences Alternatives | Permalink | Comments (1) | TrackBack

"Obama moving slowly on judges"

The title of this post is the headline of this new AP article.  Here are the basics:

Eight months into office, President Barack Obama is moving far more slowly than his predecessor to fill federal court vacancies, leaving liberals waiting for the judiciary to tilt to the left....

As of Oct. 1, Obama has submitted only eight nominees to fill 20 current appeals court vacancies. During his first full eight months in office, former President George W. Bush had nominations for filling 23 of 34 vacancies, according to figures compiled by the Alliance for Justice, a liberal court-watching group.

Obama has nominated only 10 people for 75 currently vacant district court judgeships. At this time in his first term, Bush had sent the Senate 32 district judge nominees for 81 then-vacant seats.

For sentencing fans, this is quite significant because the attitudes and approaches of lower federal judges are profoundly important on a range of still-open Booker issues and lots of other (old and newly emerging) constitutional sentencing issues. 

Some related posts:

October 2, 2009 in Who Sentences? | Permalink | Comments (2) | TrackBack

Two different Ninth Circuit panels reverse two Arizona death sentences

Death sure is different in the Ninth Circuit.  Though I think the Ninth Circuit has generally failed to live up to it (deserved?) liberal reputation in much of its post-Blakely and post-Booker non-capital sentencing jurisprudence, the judges on the Ninth Circuit continue to find ways to reverse capital sentences as evidenced by two new rulings today.  Specifically, in Jones v. Ryan, No. 07-99000 (9th Cir. Oct. 2, 2009) (available here) and Libberton v. Ryan, No. 07-99024 (9th Cir. Oct. 2, 2009) (available here), two distinct Ninth Circuit panels today rule in two distinct cases that defense counsel was constitutionally ineffective at the sentencing stages of two distinct murderers' capital trials.

October 2, 2009 in Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (6) | TrackBack

Should the ALI and other academics actively urge SCOTUS to reverse Harris in O'Brien?

I keep thinking about the suggestion by Professor Kevin Reitz, noted in this post, that the Harris mandatory minimum limit on the Apprendi Sixth Amendment rule might be subject to reversal in O'Brien.  And the more I think, the more I get drawn to the idea that everyone who views Harris as a serious impediment to sound modern sentencing reforms ought to be actively urging Harris to be overruled in O'Brien.  I say this because I genuinely believe that, if lots of thoughtful folks make a strong case that Harris is now harmful in light of the subsequent Blakely and Booker jurisprudence, few Justices may be eager to defend and uphold Harris

Let me unpack this instinct by first highlighting that Justice Stevens and Justice Thomas seem likely and eager to embrace calls to overrule Harris.  Both Justices have expressed interest in getting rid of undue limits on the Apprendi doctrine and neither seems too moved by stare decisis concerns in this setting.  The fact that both Justices Stevens and Thomas may be deeply interested in getting rid of Harris seems quite significant (and Justice Ginsburg has almost always voted with Justice Stevens in this line of cases).

Also significant, especially for the vote of Justice Breyer (and maybe also for Justice Kennedy), is that the subsequent Blakely and Booker rulings largely brought down what Harris sought to preserve: binding guideline systems based on judicial fact-finding.  After Blakely and Booker, the virtues of Harris are harder to see, while the vices remain on display.

In addition, the Recuenco decision declares Apprendi-Blakely errors subject to harmless error analysis.  Recuenco can and should greatly reduce the fear that overruling Harris would have all sorts of negative consequences: in the vast majority of old cases, any "O'Brien error" in the application of a mandatory minimum sentence would likely be found to be harmless.

Finally, I think all the new Justices could be moved by arguments that preserving Harris is bad for modern sentencing reform as long as Apprendi and Blakely and Booker all remain good law.  All the new Justices likely have a sense of the ugliness of modern Sixth Amendment jurisprudence and none have played a direct role in creating it.  Consequently, they might readily be drawn to suggestions that the Court would be helpful and respectful to states and officials involved in sentencing reforms if they now did away with the Harris exception to Apprendi.

Ironically, these thoughts all take me back to Professor Kevin Reitz, who is the reporter on the ALI's on-going revision of the sentencing provisions of the Model Penal Code.  If he could get the ALI and others to make the case that no sentencing code can be truly model with Harris still on the books, there may be even more than five votes to overrule Harris in O'Brien

Some related recent posts:

October 2, 2009 in Apprendi / Blakely Retroactivity , Blakely in the Supreme Court, Booker and Fanfan Commentary, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

Seventh Circuit judges debating reach of Kimbrough to career offenders

The Seventh Circuit today has an interesting panel opinion in US v. Welton, No. 08-3799 (7th Cir. Oct. 2, 2009) (available here), which in turn triggers an interesting dissent from judges not actually on the panel deciding the case.  First, here is the heart of the ruling in Welton:

Welton contends that Kimbrough’s holding should be extended to include defendants sentenced as career offenders. But applying the reasoning above, Welton’s argument must fail. Unlike the crack/powder disparity, the career offender Guideline range is the product of a Congressional mandate. As Kimbrough noted, Congress “specifically required the Sentencing Commission to set Guidelines sentences for serious recidivist offenders ‘at or near’ the statutory maximum.” Id. at 571 (citing 28 U.S.C. § 994(h)). Deviating from the career offender Guideline range based on a policy disagreement necessitates that a sentencing court disregard those statutory maximums.

Because this ruling required the Seventh Circuit panel to overrule a prior decision, this opinion was circulated to all member of the Circuit.  That, in turn prompted a dissent from three judges not on this panel, which starts this way: 

The Supreme Court has held unequivocally that all guidelines are advisory and that courts may issue below-guideline sentences based on policy disagreements with the crack/powder disparity.  Nonetheless, the panel believes there are some exceptions to these rules. Because the panel opinion imposes impermissible limits on a judge’s discretion in applying the Sentencing Guidelines, I believe it is out of step with the Supreme Court’s decisions in Booker and Kimbrough.

October 2, 2009 in Booker in the Circuits, Federal Sentencing Guidelines, Kimbrough reasonableness case | Permalink | Comments (5) | TrackBack

"Victim’s letter lessens attacker’s prison sentence"

The title of this post is the headline of this local Wisconsin story, which provides another reminder that seriously attending to the interests of crime victims may sometimes result in reduced sentences. Here are the details:

A Winona man was sentenced Thursday to 6-1/2 years in prison for his role in a random and violent mugging. Joshua Lee Duden, 24, pleaded guilty in September to aiding and abetting aggravated first-degree robbery. Prosecutors dismissed a first-degree assault charge in exchange for the plea.

Judge Mary Leahy said she was prepared to sentence Duden to the maximum prison time allowed under state sentencing guidelines — 93 months — until she read a letter from the victim. The man wrote that he didn't think Duden, or his two co-defendants, deserved prison time.  He wasn't bitter, and had compassion for his attackers.  "I don't know where that (compassion) comes from, but he's got it in him," Leahy said. "I don't think I could say that to you if you'd done that to me."...

Assistant County Attorney Kevin O'Laughlin argued Duden should be sentenced to 93 months in prison.  According to the police version of the attack, he said, Duden laughed as the assault went on. Duden failed to take responsibility for his actions during the course of his criminal proceedings, O'Laughlin said.

Of course, the on-going controversy over the Roman Polaski case provides a high-profile example of the reality that victims sometimes are interested in an outcome that differs from what prosecutors and other members of the public demand.  On the Polanski front, I received this e-mail yesterday from a thoughtful colleague who has long been troubled by how victims are treating in the modern criminal justice system:

I’ve been thinking about the person most ignored in the Polansky arguments right now, his victim, and about how she’s a very good example of the hypocrisy that our prison-first-and-always advocates show on the utility of victim preferences and testimony.  She received a civil judgment against Polansky, settled out of court, moved on apparently successfully with her life, and has expressed her displeasure both at the case being brought up again in the media and about his being prosecuted at this time.  Were we to believe the usual advocates of the sanctity of the victim, that should make what happens further cut-and-dried.  Instead, she is a footnote in all the commentary, on both sides.  No real point, just an observation and a request that she be kept in mind the next time we hear from tough, tough, tough proponents doing it all in the name of victims. She’s a perfect example of how victims are only useful to prosecutors if they serve the proper purposes.

October 2, 2009 in Celebrity sentencings, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (25) | TrackBack

Iowa Supreme Court finds 25-year sentence for statutory rape questionable under state constitution

A helpful reader alerted me to a fascinating new opinion from the Supreme Court of Iowa in State v. Bruegger, No. 07–0352 (Iowa Oct. 2, 2009) (available here). Here is how today's must-read starts:

In this case, we are confronted with a claim by a defendant convicted of statutory rape that a twenty-five-year prison sentence amounts to cruel and unusual punishment.  His term of incarceration was substantially lengthened based upon a prior incident of sexual misconduct committed by the defendant as a juvenile.  For the reasons expressed below, we vacate the sentencing order of the district court and remand for further proceedings.

The majority opinion provides a terrific review of a whole array of constitutional issues and closes this way:

[W]e note that Bruegger has committed a serious crime for which the legislature may impose a serious penalty. We do not view statutory rape as a victimless crime in light of the risk of disease, pregnancy, and serious psychological harm that can result from even apparently consensual sexual activity involving adults and adolescents. Nor do we believe that Bruegger’s conduct as a juvenile is irrelevant to sentencing. Our sole concern here is whether, under the facts and circumstances, a mandatory sentence of 21.25 years is “off the charts.” We, therefore, vacate the sentencing order of the district court and remand the case for a new sentencing hearing to allow Bruegger and the State to present evidence as to the constitutionality of section 901A.2(3) as applied to the defendant.

The dissenters believe that the majority has gone to far, as evidenced by this opening paragraph of the dissenting opinion authored by one judge:

While the majority opinion is thoughtful and compelling, I refrain from joining in it because sentencing parameters is an area of the law for which courts are required to give great deference to the policies of the legislature as written into sentencing statutes.  The individual-assessment approach introduced by the majority in this case will only permit the courts to substitute their judgment for that of the legislature in cases to follow.  This approach is contrary to the principles of judicial restraint and separation of powers.

October 2, 2009 in Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

US remains a world leader in incarceration rate

Thanks to this post at Grits for Breakfast, I see that Kings College in London now has available here its latest, greatest "World Prison Population List."  As the list details, the United States, which President Lincoln called a nation "conceived in liberty," remains a world leader in incarceration rate (and by quite a large margin):

The United States has the highest prison population rate in the world, 756 per 100,000 of the national population, followed by Russia (629), Rwanda (604), St Kitts & Nevis (588), Cuba (c.531), U.S. Virgin Is. (512), British Virgin Is. (488), Palau (478), Belarus (468), Belize (455), Bahamas (422), Georgia (415), American Samoa (410), Grenada (408) and Anguilla (401).

Some related posts:

October 2, 2009 in Scope of Imprisonment, Sentencing around the world | Permalink | Comments (8) | TrackBack

October 1, 2009

Should religious doctrines influence Eighth Amendment jurisprudence?

Thanks to this post by Orin Kerr, I took a closer look at this amicus brief filed in the SCOTUS  juve LWOP cases on behalf many religious organizations.  As Orin notes, the "substance of the brief is provocative [as] it argues that religion should inform 8th Amendment jurisprudence."  Specifically, consider these passages from the amici brief (with quotes and cites left out):

The importance of a society’s religious organizations’ views on issues of morality, crime, and punishment to that society’s standards of decency is well recognized.  Indeed, for the vast majority of mankind, crime, punishment, and reform are still inextricably bound up with religious views about sin, judgment, and forgiveness.  There are few, if any, institutions that can claim a greater tradition of working with and studying the conscience of the human person and related questions of guilt, blame, and suffering than those of the religious community....

Amici, as members of the religious community, are uniquely positioned to provide invaluable guidance regarding the issue presented in these cases: whether sentencing juveniles to life imprisonment without the possibility of parole for non-homicide offenses is contrary to contemporary standards of decency and therefore violates the Eighth Amendment’s prohibition of cruel and unusual punishment.  Their religious traditions — Christianity, Judaism, Islam, and Buddhism — have played influential roles in societal discourses about morality and criminal punishment throughout history, and continue to do so today.  An overwhelming majority of Americans continue to rely on the teachings and instructions of these faith traditions on matters of morality and justice.

I am curious to hear reader reactions to the suggestion that religious traditions and teaching might have a special role to play in Eighth Amendment cases.

October 1, 2009 in Graham and Sullivan Eighth Amendment cases, Who Sentences? | Permalink | Comments (15) | TrackBack

Kentucky Supreme Court finds retroactive application of sex offender residency restriction unconstitutional

As detailed in this local article, in Kentucky a "law that bans convicted sex offenders from living near schools and other places where children congregate is unconstitutional, the Kentucky Supreme Court ruled Thursday." Here are the basics:

Kentucky lawmakers passed a law in 2006 that barred sex offenders from living within 1,000 feet of schools, day care centers and playgrounds. In a 5-2 decision, justices held that the law is punitive because lawmakers applied it retroactively to sex offenders convicted before the restrictions were imposed. The restrictions will still apply to anyone convicted after July 2006. By doing so, the majority concluded, lawmakers unconstitutionally imposed a punishment that wasn't in criminal law at the time the sex offenders were convicted....

Attorney General Jack Conway said he and his staff are reviewing the ruling and considering whether to ask the state Supreme Court to reconsider the decision or to appeal the case to the U.S. Supreme Court. "At first glance, we have some serious concerns about the impact on public safety," Conway said. "As a parent, I am concerned that this ruling could open the door for sex offenders to be living next door to our schools and day care centers."

The full ruling in Kentucky v. Baker, No. 2007-SC-000347-CI (Ky. Oct. 1, 2009) (available here) starts this way:

The question of law to be answered is whether KRS 17 .545, which restricts where registered sex offenders may live, may be applied to those who committed their offenses prior to July 12, 2006, the effective date of the statute.  We hold that it may not.  Even though the General Assembly did not intend the statute to be punitive, the residency restrictions are so punitive in effect as to negate any intention to deem them civil.  Therefore, the retroactive application ofKRS 17.545 is an ex post facto punishment, which violates Article I, Section 10 of the United States Constitution, and Section 19(1) of the Kentucky Constitution.

October 1, 2009 in Sex Offender Sentencing | Permalink | Comments (7) | TrackBack

Ohio Supreme Court refuses to block next Ohio execution

As detailed in this local story, the "Ohio Supreme Court today turned down a request to delay the scheduled Oct. 8 execution of Lawrence Reynolds." Here are more of the basics:

The public defender asked the court to halt the execution because of problems with the Sept. 15 Romell Broom lethal injection, which was halted after two hours when medical technicians could not attach IVs.

The court dismissed the appeal and denied the stay request, both on 6-0 votes. (Justice Maureen O'Connor didn't participate.)   Reynolds still has an appeal pending with the 6th U.S. Circuit Court of Appeals.

I would not be at all surprised if the Sixth Circuit does grant a stay, though I also would not be surprised if more than a few Sixth Circuit judges were hoping the Ohio Supreme Court might prevent them from having to decide whether to grant a stay.

Some recent related posts on Ohio lethal injection issues:

October 1, 2009 in Death Penalty Reforms | Permalink | Comments (7) | TrackBack

Might Apprendi be at risk with O'Brien cert grant?

In this post concerning the Supreme Court's grant of cert this week in US v. O'Brien, I reprinted the thoughtful notion by Kevin Reitz that the Harris mandatory minimum limit on the Apprendi might be subject to reversal in O'Brien.  But one commentor in that thread suggested that maybe the spirit might be moving the other way:

[T]he question presented in O'Brienis extremely broad.  So broad, I fear, that it could conceivably accommodate the overruling of Apprendi itself -- accommodate eliminating the constitutional distinction between elements and sentencing factors.

I have yet to see anyone raise this possibility: that Roberts, Kennedy, Breyer, and Alito voted to hear O'Brienbecause they are hoping to get Sotomayor on board the plane out of Apprendi-land.

This is somewhat fanciful and paranoid speculation, to be sure. But let's not forget Citizens United. I think overruling Apprendi is no less likely an outcome than overruling Harris.

Wow, that is some wild fanciful and paranoid speculation, especially given that Chief Justice Roberts seem to have some affinity for Apprendi-land as evidenced by his votes in Cunningham and Ice.  In addition, I would be very surprised to see the Solicitor General or anyone else actively advocate overruling Apprendi anytime soon.  Moreover, Justice Stevens has said that he would like to see Harris overruled, and so I think he will likely be working harder this (last?) term to extend Apprendi and will not take kindly to any move to undo his efforts there.

That all said, all these comments usefully highlight is the unsteady and uncertain status of all aspects of the entire Apprendi-Blakely-Booker jurisprudence, and O'Brien may thus be especially important for giving us an update on all the current Justices' take on this crazy-mixed-up Sixth Amendment stuff.

October 1, 2009 in Blakely in the States, Blakely in the Supreme Court, Mandatory minimum sentencing statutes | Permalink | Comments (4) | TrackBack

A thoughtful defense of prosecutorial declination in the Andrew Sullivan pot case

Regular readers may recall the recent kerfuffle over the decision by federal prosecutors to dismiss minor marijuana possession charges against noted blogger Andrew Sullivan (blogged here).  Because I was not quite sure what to make of the case, I asked former federal prosecutor Anthony Barkow, who is now the Executive Director of the Center on the Administration of Criminal Lawat NYU School of Law, if he had some thoughts on the matter.  To may great pleasure, Barkow and one of his NYU students penned a terrific commentary, which can be downloaded in full below.  Here is how the piece starts and ends: 

“Equal justice under the law” is a phrase that graces the walls of courtrooms across America. Unfortunately, it has become all too common in recent decades for lawyers to place too much attention on superficial equality without paying similar heed to the need to do justice.

A recent example involves provocative public intellectual and blogger Andrew Sullivan....

The Magistrate presiding over Sullivan’s case decried what he viewed as differential treatment given to Sullivan compared to others charged with marijuana possession.  He pointed out that the Sullivan declination did not reflect a discretionary decision by the United States Attorney’s never to prosecute the possession of small amounts of marijuana, noting that such persons “are prosecuted routinely.”   The Magistrate rejected the idea that prosecutors should consider collateral consequences when making charging decisions, arguing that the United States Attorney should have charged Sullivan and left to immigration authorities the determination of whether Sullivan would be deported or denied citizenship.  In doing so, the Magistrate ignored the constitutional and practical role prosecutors play as gatekeepers in the criminal justice system, the obligation of prosecutors only to pursue charges that result in proportional punishment, and the fact that prosecutors’ first obligation in all exercises of discretion is to see that justice is done.

Download NYU Sullivan commentary

October 1, 2009 in Collateral consequences, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (12) | TrackBack

What state and local issues will be litigated the most if (when?) Heller is incorporated?

As suggested in prior posts, the smart money in the wake of the Supreme Court's grant of cert in McDonald is that the Justices will extend its Hellerruling and find Second Amendment rights are fully applicable to states and localities.  Thus, I am already thinking about and wondering what kinds of state and local gun regulations will quickly become litigation hot-spots once the Second Amendment is incorporated. 

This new piece from the Christian Science Monitor, which is headlined "Arizona allows guns in bars. Should any place be off-limits?", reinforces my sense that there are going to be big battles over what are "sensitive places" where gun possession can be banned.  Here is a snippet from the piece:

Arizona will be the 41st state to let bar patrons pack heat (only if they’re not drinking alcohol, however). Meanwhile, the list of places where gun owners can bring their weapons is growing, as the gun lobby increases pressure on statehouses and Congress to broaden Second Amendment rights. “The trend over the last 20 years is more freedom in most states for individuals to carry guns,” says Robert Cottrol, a law professor at George Washington University in Washington.

The issue took on even greater importance Wednesday when the US Supreme Court announced it will hear arguments as to whether a Chicago handgun ban violates the Second Amendment right to bear arms.  The case could have implications for all local gun restrictions, which have been a central tenet of gun control....

In Arkansas, state Rep. Beverly Pyle proposed allowing guns inside places of worship earlier this year. It seems as though the state’s ban will stand, but the issue is percolating. Ken Pagano, a pastor in Kentucky, in June sponsored a bring-your-guns-to-church day. “God and guns were part of the foundation of this country,” Mr. Pagano told The New York Times.

Going forward, gun owners hope to make sure that no place will be off-limits. “My guess is that too that the extent that there are restricted spaces, there will be a movement to push against that,” Professor Cottrol says.

Some related Second Amendment posts:

October 1, 2009 in Second Amendment issues | Permalink | Comments (4) | TrackBack

Texas Governor Perry disrupts panel looking into Willingham capital case

This Dallas Morning News story reports on a significant turn of events in Texas, where the guilt of a defendant who was executed by the state five years ago has come to be seriously questioned.  Here are the basics: 

Gov. Rick Perry was blasted Wednesday after he swept three appointees from their jobs just two days before they were set to critically examine a flawed arson investigation that contributed to the execution of a Corsicana man.

The commission was to hear from Baltimore-based Craig Beyler, a nationally recognized fire expert, who had been hired by the panel to review the Cameron Todd Willingham case. Beyler's long-anticipated report, released in August, called the Willingham fire investigation slipshod and based on wives' tales about how fire behaves and possible arson evidence.

Perry said his move was a typical use of his power on appointments, on which he has complete discretion. But Barry Scheck, co-director of the New York-based Innocence Project, compared the move to Richard Nixon during Watergate. "This is like the Saturday night massacre," said Scheck, whose group also reviewed the Willingham case and found it lacking. "Rather than let this important hearing go forward and the report be heard, the governor fires the independent chairman and two other members of this commission. It's like Nixon firing [special prosecutor] Archibald Cox to avoid turning over the Watergate tapes."

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