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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."

Recent related posts:

October 1, 2009 in Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (8) | TrackBack

Former prosecutor thickens sentencing plot in Polanski case

The Polanski case continue to generate both buzz and news, and the latest comes from this AP story headlined "Former prosecutor says he lied about Polanski case."  Here are highlights:

A former prosecutor says he made up a story he told a film crew about advising a judge handling Roman Polanski's sex case to send the director to prison.

In "Roman Polanski: Wanted and Desired," David F. Wells is depicted as conferring with a trial judge more than 30 years ago about Polanski's case. Wells said in the documentary that the judge took his advice in deciding to renege on a plea bargain and give Polanski additional prison time. "I made that up to make the stuff look better," Wells said. He also said he overstated his actions after being told the film would air in France, not the United States. The film aired on HBO.

Wells' statement on the documentary later became part of the basis for a move by Polanski's attorneys to dismiss the case against the fugitive director, who was arrested in Switzerland on Saturday....

In France, several government officials who had initially rushed to Polanski's defense were being more cautious on Thursday, stressing that the renowned filmmaker is not above the law.

Wells, who retired more than two years ago, did not handle Polanski's case but was assigned to the courtroom where it was heard and had frequent interactions with the now-deceased trial judge Laurence J. Rittenband. "They interviewed me in the Malibu courthouse when I was still a DA, and I embellished a story," Wells said about the film crew in an interview with The Associated Press Wednesday. "I'm a guy who cuts to the chase - I lied. It embarrasses the hell of me."

Wells said he was sorry about making the comments for the documentary. "I cost the DA's office a lot of money and aggravation over this," Wells said.

Polanski was accused of plying a 13-year-old girl with champagne and part of a Quaalude during a modeling shoot in 1977 and raping her. He was initially indicted on six felony counts, including rape by use of drugs, child molesting and sodomy.

He pleaded guilty to the lesser charge of unlawful sexual intercourse; in exchange, the remaining charges were dropped, and the judge agreed to send Polanski to prison for a 90-day psychiatric evaluation. But Polanski was released after 42 days and fled the country for France before sentencing after the judge reportedly told lawyers he planned to add more prison time.

Polanski's attorneys later argued in a motion to dismiss the case that the communications between the judge and Wells were clear misconduct and violated Polanski's constitutional rights. That motion was dismissed because Polanski was a fugitive at the time, though the judge acknowledged "substantial misconduct" in the original case. The matter is now in the hands of an appeals court....

Polanski's victim, Samantha Geimer, who long ago identified herself, has joined in Polanski's bid for dismissal. She testified at the time that Polanski forced himself on her - which he acknowledged in his guilty plea - but has said she forgives him and wants the ordeal to be over.

October 1, 2009 in Celebrity sentencings, Who Sentences? | Permalink | Comments (7) | TrackBack

September 30, 2009

Might the Harris limit on Apprendi be at risk with O'Brien cert grant?

Professor Kevin Reitz sent me this tantalizing e-mail in response to te Supreme Court's cert grant today in O'Brien (basics here):

U.S. v. O’Brien gives the Court the chance to reconsider Harris v. U.S., 536 U.S. 545 (2002), which held that the Apprendi rule doesn’t attach to factfinding at sentencing that triggers a mandatory minimum sentence without increasing the available maximum penalty.  It would certainly be big news if the Court were to overrule Harris.  The Solicitor General’s office doesn’t expect this to happen (otherwise they wouldn’t have filed for cert).  Counting votes, however, it’s hard to call. 

Three dissenters in Harris remain on the Court: Stevens, Thomas, and Ginsburg.   Breyer’s concurring vote in Harris was wobbly — the rationale was that he could not “yet accept” the Apprendi rule.  If “yet” has now arrived, we may have four votes to overrule Harris.   Roberts, Alito, and Sotomayor are not clearly on record.  Sotomayor might well be a 5th vote?  

Stare decisis counts for something here.  Harris reaffirmed an earlier case against a fully-developed Apprendi challenge, so a 180-degree turn in O’Brien would be dramatic.  Still, from a policy view, once Apprendi and Blakely and Booker are the law, it would be nice to eliminate Harris’s mandatory minimum end-run around those cases.

September 30, 2009 in Blakely in the Supreme Court, Mandatory minimum sentencing statutes | Permalink | Comments (19) | TrackBack

Is the "culture of death" slowly dying at the Supreme Court?

As regular readers know, I have long complained about Supreme Court being caught up in what I called a “culture of death”: a tendency of the Court to devote, in my view, far too much of its scarce judicial time and energy to reviewing death penalty cases and adjudicating the claims of death row defendants.  I synthesized these complaints in an article published last year in Ohio Northern University Law Review based (on a lecture I gave at ONU) titled, "A Capital Waste of Time? Examining the Supreme Court's 'Culture of Death'," which is available at this link. In a coda to that piece, I noted that the Court had recently reduced the number of capital case cert grants, and I speculated that recent changes in personnel might be moving the Court away from its troublesome affinity for obsessing over capital cases.

I return to these issues upon noticing recent posts here and here at Crime & Consequences, in which Kent notes how many capital cases were before the Justices at their "long conference" and in which he subsequently notes that the Court did not have a single capital case in its long list of cert grants today.  More broadly, as detailed in the links on this DPIC page, the Supreme Court had a very light capital docket in the October 2008 Term and this Term so far is also shaping up to be free of any truly significant capital punishment cases (especially after the Court's Troy Davis dodge).

Though it is likely still too early to assert that the Court is  actively moving away from its previous obsession with capital cases, I am inclined to spotlight (and praise) the real possibility that Justices are coming to see that regular and repeated review of capital cases on the merits may do significantly more harm than good.

September 30, 2009 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (2) | TrackBack

A mooooooving story of sensible judging in Moooooorestown

Thanks to blog posts here and here, I learned of a local story concerning a New Jersey sex offense case that calls out for comical commentary.   This New York Daily News piece, headlined "Judge dismisses animal cruelty charges against police officer Robert Melia for sex with cows," provides the details:

A New Jersey judge has dismissed animal cruelty charges against a cop accused of committing a sex act with young cows, saying a grand jury had no way of knowing whether the animals were "tormented."

Moorestown police officer Robert Melia, who is currently suspended, allegedly engaged in oral sex acts with five calves in Southampton in 2006.   Since New Jersey currently has no law explicitly banning such an act, prosecutors in Burlington county brought animal cruelty charges against Melia, the Philadelphia Daily News reports.

Judge Morely said it was questionable that Melia's acts, though "disgusting," constituted animal cruelty. "I'm not saying it's OK," Morely said.  "This is a legal question for me. It's not a questions of morals. It's not a question of hygiene.  It's not a question of how people should conduct themselves."

The dismissal reportedly irked the prosecution. "I think any reasonable juror could infer that a man's penis in the mouth of a calf is torment," a Burlington County assistant prosecutor, Kevin Morgan, said. "It's a crime against nature."

The judge's dismissal does not mark the end of Melia's legal woes.  He, along with girlfriend Heather Lewis, was arrested in April 2008 for sexually assaulting three girls over a five-year-period. Authorities investigating those charges reportedly uncovered videos on his computer of a girl being "subjected to sexual activity" in addition to taped encounters between Melia and the calves.

September 30, 2009 in Sex Offender Sentencing | Permalink | Comments (4) | TrackBack

What is the best argument that Heller should only impact the feds? Will it get any votes?

How Appealing does an effective job here assembling the early major news coverage of the Supreme Court's decision to grant cert in McDonald v. Chicago, the case concerning whether the Second Amendment as interpreted in Heller is applicable as a limit on state and local gun regulations.  This is big news for lots of reasons, especially because it seem to me all but certain that the Supreme Court will declare Heller applicable to the states.

Indeed, as I have been thinking about this issue in the course of discussing it with student in my Second Amendment seminar, I have had a hard time developing a very strong argument that Heller should only apply to the feds.  Lower courts, understandably, decided against incorporation because they were bound by old precedent that the Second Amendment only applied to the states.  But a majority of Supreme Court can decide to (and seems likely to want to) overrule that precedent, and thus folks who want to limit Heller's reach will need to come up with other arguments.

The problem is, now that all important substantive constitutional rights are thought to constrain all levels of government, how can and should one develop an argument that Heller applies only to the feds.  Of course, proponents of gun control can make strong policy arguments that states and localities should be allowed to make their own distinct gun regulation choices, but are there any really good legal arguments that states and localities should not be subject to the same Second Amendment rules that limit the federal government?  And, moving to predictive mode, can anyone predict whether any Justice will embrace these arguments (as opposed to just contending that Heller was wrong and should not be extended).

September 30, 2009 in Second Amendment issues | Permalink | Comments (12) | TrackBack

Ninth Circuit judges talking about meaning and import of Paul reversal(s)

Federal sentencing fanatics know that the Paul case in the Ninth Circuit is significant because it was arguably the first (and might still be considered the only) circuit ruling that a within-guideline sentence should be reversed as substantively unreasonable.  The initial story of Paul is discussed in this 2007 post and a subsequent 2009 ruling after a remand for resentencing is discussed in this post

Now, as evidenced by this new order refusing en banc review, the Ninth Circuit has added an extra chapter to this story.  Specificaly, consider this opening paragaph from a dissent from the denial of rehearing en banc in Paul (which was joined by four other circuit judges):

This case decides whether a district court violated a mandate from the court of appeals.  It does not decide whether Paul’s sentence was substantively unreasonable, despite language in the opinion that could mislead readers.  I write separately in an attempt to forestall the confusion that has already arisen from the way in which the majority has chosen to draft its disposition.  I dissent for the narrow purpose of sending the criminal defense bar this message: do not cite this case for the proposition that Paul’s sentence was substantively unreasonable.

September 30, 2009 in Booker in the Circuits, Rita reactions, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Split Ohio Supreme Court upholds criminal punishment for DUI arrestee refusing chemical test

As detailed in this official press release, this morning the Supreme Court of Ohio "upheld as constitutional a state law that imposes 10 additional days of mandatory jail time on a driver with a prior DUI conviction if that person refuses to take a chemical test after being arrested for a subsequent DUI violation."  The majority opinion in the 4-3 ruling in State v. Hoover, No. 2009-Ohio-4993 (Ohio Sept. 30, 2009) (available here), starts this way:

In this case, we consider the constitutionality of R.C. 4511.19(A)(2), which requires the imposition of criminal penalties upon certain persons who refuse to consent to chemical testing upon being arrested for operating a motor vehicle while under the influence of alcohol or a drug of abuse (“DUI”).  We hold that R.C. 4511.19(A)(2) does not violate the Fourth Amendment to the United States Constitution or Section 14, Article I of the Ohio Constitution.

The dissenting opinion starts this way:

The majority’s interpretation of R.C. 4511.19(A)(2) signals a fork in the road.  R.C. 4511.19(A)(2) veers from the traditional administrative punishment for refusal to consent to a chemical test upon an arrest for DUI and goes down a separate path, beyond the regulation of licensing; for certain DUI arrestees, R.C. 4511.19(A)(2) criminalizes the refusal to take a chemical test.  Since imposing a criminal penalty for refusing to consent infringes on a suspect’s rights under Section 14, Article I of the Ohio Constitution and the Fourth Amendment to the United States Constitution, I dissent.

September 30, 2009 in Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

SCOTUS cert grants: Guns, sex offenders, and sentencing factors ... oh my!

Reviewing (thanks to SCOTUSblog) the details of the ten cert grants announced by the Supreme Court this morning (basics here and here), I cannot help but feel a bit like a legal Dorothy heading through a jurisprudence thicket on the ways to learn what the Wizards of SCOTUS will have to say on some of the hottest legal topics for sentencing fans.  Specifically, these there grants as described at SCOTUSblog are huge news for anyone involved in modern sentencing law and policy issues:

Docket: 08-1301
Title: Carr v. United States
Issue: Whether a person may be criminally prosecuted under 18 U.S.C. § 2250for failure to register when the defendant’s underlying offense and travel in interstate commerce both predated the Sex Offender Registration and Notification Act’s enactment ; whether the Ex Post Facto Clause precludes prosecution under § 2250(a) of a person whose underlying offense and travel in interstate commerce both predated SORNA’s enactment.

Docket: 08-1521
Title: McDonald, et al.  v. City of Chicago
Issue: Whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home.

Docket: 08-1569
Title: United States v. O’Brien and Burgess
Issue:Whether the mandatory minimum sentence enhancement under 18 U.S.C. § 924(c)(1) to a 30-year minimum when the firearm is a machinegun is an element of the offense that must be charged and proved to a jury beyond a reasonable doubt, or instead a sentencing factor that may be found by a judge by the preponderance of the evidence.

Of course, the Second Amendment incorporation issue is the biggest story with the biggest potential jurisprudential impact.  But I think the outcome of that case is almost a given, as I would be shocked to see the Justices decide Heller only applies to the federal government.  The other cases seem more in play, and how the Justices approach and decide these cases could make them both sleepers for sentencing fans to watch closely.

I will have a lot more to say about both Carr and McDonald in subsequent posts, and I am already looking forward to the discussions and debate both cases are likely to generate in the months ahead.

September 30, 2009 in Procedure and Proof at Sentencing, Second Amendment issues, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

New report on juve LWOP in Massachusetts

One of the many reasons I am always eager for the Supreme Court to take up more (non-capital) sentencing cases is because simply the decision to grant cert will often inspire public policy groups and the general public to notice and debate important (non-capital) criminal justice issues that are too often overlooked.  This reality in on full display in the wake of the Supreme Court's decision to examine juvenile LWOP sentences in Graham and Sullivan: I have noticed a huge uptick in the number of  studies and press reports on life sentences for juveniles in recent months. 

The latest example comes from Massachusetts, as detailed in this Boston Globe article and this press release from the Children Law Center of Massachusetts.  Here is the start of the Globe article:

Despite its liberal reputation, Massachusetts has one of the harshest laws in the country for sentencing murderers as young as 14 to life in prison without parole, and many of the 57 people serving such mandatory sentences are first-time offenders, according to an advocacy group that wants them to become eligible for parole.

The Children’s Law Center of Massachusetts, in what it said was the first comprehensive study of the 1996 law that resulted in such sentences for first-degree murder, found that a disproportionate percentage of the children locked up for the rest of their lives are black. Many of the offenders were convicted with adult codefendants, some of whom got milder sentences and have been freed.

The report [which is available at this link] followed a two-year review of most of the cases in which children ages 14, 15, and 16 were tried in adult court and sentenced to life. The study says that penalties for juvenile murderers were inadequate in the 1980s but that the Legislature went too far when it passed the current law in response to what the center describes as overblown fears of young super predators.

The group wants Governor Deval Patrick and the Legislature to change the law to at least make juveniles convicted of first-degree murder eligible for parole after 15 years, as is true for people convicted of second-degree murder. “Life-without-parole sentences may be an appropriate response to some adult crimes, especially in a state like Massachusetts that does not impose the death penalty,’’ the 33-page report said. “But the current law treats youths as young as 14 exactly like adults, regardless of their age, past conduct, level of participation in the crime, personal background, and potential for rehabilitation.’’

Other recent posts on juve LWOP and the Graham and Sullivan cases:

September 30, 2009 in Graham and Sullivan Eighth Amendment cases, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

A timely note on the constitutional questions surrounding the Adam Walsh Act

I just came across this timely new Note on SSRN, titled "Federalism Challenges to the Adam Walsh Act," that is forthcoming in the Boston University Law Review. Here is the abstract:

This Note addresses two provisions of the Adam Walsh Act that have been challenged as violating principles of federalism: 18 U.S.C. § 4248, which provides for federal civil commitment of sexually violent predators, and 18 U.S.C. § 2250(a)(2)(A), which creates a new federal “failure to register” crime for federal sex offenders.  Part I provides background information on the Adam Walsh Act and these two provisions.  Part II examines the possible sources of constitutional authority for these provisions, the Commerce Clause and the Necessary and Proper Clause.  This Part explains that these two clauses provide the basis for most of the federal criminal law, and describes how they might be invoked to justify the Adam Walsh Act provisions at issue.  Part III argues that neither provision is justified independently by the Commerce Clause.  Finally, Part IV argues that neither provision is justified as a law necessary and proper for carrying into execution Congress’s power to enact federal criminal laws.  This is the chief rationale that the government has relied on in cases challenging the constitutionality of the civil commitment provision. Interestingly, the government has argued that the civil commitment provision is a law necessary and proper for carrying into execution Congress’s power to criminalize both federal offenders’ past federal crimes and possible future federal crimes.  This Note argues that neither provision is a law necessary and proper for carrying into execution the federal government’s power to prosecute, punish, or imprison individuals for past federal offenses.  Furthermore, neither provision is a law necessary and proper for carrying into execution the federal government’s power to prevent future federal crimes. Because the provisions at issue exceed Congress’s constitutional authority, they are invalid and must be struck down.  The Note concludes by suggesting how the provisions might be revised to pass constitutional muster.

Astute readers may know that the constitutionality of the civil commitment provisions of the AWA is before the Supreme Court this term in the Comstock case.  And the registration provision's constitutionality, which is now kicking around in circuit courts, will surely be influenced by whatever SCOTUS ends up doing in Comstock.

September 30, 2009 in Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

ABA hosting second annual "Sentencing Advocacy, Practice & Reform Institute"

I just received this notice of a great sentencing event taking place in DC in early November:

The ABA Criminal Justice Section, in cooperation with our co-sponsors, is proud to present a one-day seminar to address a broad array of sentencing and reentry issues, with a particular emphasis on sentencing practice in white-collar cases.  The conference will examine sentencing and reentry trends and opportunities for reform at both the federal and state levels.

The program will begin with a plenary session on the state of the sentencing union including rates of incarceration, sentencing trends, racial disparity, alternatives to incarceration, and recent federal legislation.  There will be two tracks of instruction focused on reentry and two focused on sentencing, each addressing issues of concern to different segments of the criminal justice community, including probation and parole officials, white collar crime defense attorneys, prosecutors, academics, public defenders, judges, sentencing consultants, mitigation specialists, corrections personnel, victim advocates and policy experts.  One track will focus on practice and procedure issues of particular concern to criminal defense attorneys in general and white collar practitioners in particular.

Confirmed speakers include Jeremy Travis, President of the John Jay College of Criminal Justice, and the U. S. Sentencing Commission.  The second annual conference is hoped to again attract a broad cross-section of those involved in perhaps the most pressing criminal justice issues of our time.

Click on this link here for complete brochure.

September 30, 2009 in Recommended reading, Reentry and community supervision | Permalink | Comments (0) | TrackBack

September 29, 2009

Schools embrace sex-offender scanners despite costs of this form of technocorrections

This article from today's Philadelphia Inquirer reports on the hottest new school accessory this fall:

The three mothers waiting to meet with the principal looked harmless enough, but before they were allowed into the Spring-Ford district school, they had to undergo a computerized background check. The women gave their driver's licenses to a secretary, who scanned them against a national sex-offender database....

So far, parents like it, administrators say, proof that after a decade marked by the Columbine massacres, the 9/11 attacks and high-profile child sex crimes, nothing may be "too much" when it comes to child security, regardless of the cost or intrusiveness.

"I never want to be the superintendent who has to tell a parent something happened to their kid," Spring-Ford superintendent Marsha Hurda said during a demonstration of the system, installed in 13 school buildings this year at a cost of about $1,500 each.

Raptor Technologies Inc., the Houston company that makes the system, said it's been installed in 6,000 schools nationwide since it was created seven years ago as a visitor-management system for Enron Corp. In addition to flagging sex offenders, the system manages the flow of visitors and keeps track of their whereabouts. It also alerts staff to parents who are involved in custody disputes or subject to restraining orders.

Visitors who clear the sex-offender registry are sent on their way and told to check out when they leave. But if there's a match, school administrators, and sometimes police, are notified. If there's a legitimate reason for the visit, such as a teacher conference, the visitor is allowed in with an escort. Participating in other school functions, such as volunteering in class or chaperoning a field trip, is generally not allowed.

"Even if you are a parent and are on one of these Megan's Law lists, you are not allowed to come in and freely visit our buildings," said Methacton School District superintendent Terry Quinn. Or, as Julie Mullin, a Spring-Ford Area School District board member and mother of seventh-grade twins, said, "I don't want them reading to my kid."

Interest in the scanners, and a half-dozen others from other companies, comes amid a growing national debate over whether the ever-swelling lists of registered sex offenders - 674,000 by the last estimate - are really that helpful or simply provide a false sense of security. The company says its software identified 1,700 convicted sex offenders at schools last year.

Civil libertarians note that from 80 to 90 percent of people who victimize children are someone the children already know, such as a parent, family friend or coach. "It certainly can be helpful," Kristen Anderson, a spokeswoman for the National Center for Missing and Exploited Children, said of the technology, "but it's no substitute for good common-sense protocols and parenting."

Lauren Taylor, executive director of the Pennsylvania Sexual Offenders' Assessment Board, said the idea that a molester would wander into a school to harm a child is "a very unlikely scenario." It's more important to thoroughly vet those who come in close contact with children, such as teachers, health-care workers, and janitorial staff. "I'm not sure the bang for the buck is there," she said of the security devices.

September 29, 2009 in Sex Offender Sentencing, Technocorrections | Permalink | Comments (1) | TrackBack

Fundraiser Hsu gets 24-year (within-guideline?) federal sentence for ponzi scheming

The high-profile, white-collar sentencing of the day is described in this Wall Street Journal article headlined "Campaign Fund-Raiser Hsu Sentenced to 24 Years in Prison." Here are the basics:

A federal judge on Tuesday sentenced former Democratic fund-raiser Norman Hsu to more than 24 years in prison for illegally funneling tens of thousands of dollars to U.S. political candidates and for his role in a Ponzi scheme.

The sentence of 292 months in prison, handed down in a U.S. District Court in Manhattan by Judge Victor Marrero, was less than the 30 years that the prosecution had requested.

Before Judge Marrero announced the sentence, Mr. Hsu quietly told him: "I know apologizing will not make things better for anyone, but I would still like to apologize to your Honor, and to everyone else." Federal prosecutors said the apology was meaningless, arguing that Mr. Hsu wasn't as cooperative as he could have been.

Mr. Hsu's attorney, Alan Seidler, said his client wasn't surprised by the sentence. Mr. Seidler says his client intends to appeal, as Mr. Hsu disputes the amount of money lost to investors on which the sentence was calculated. Prosecutors have said that investors, collectively, lost at least $20 million.

Mr. Hsu was convicted in May of illegally funneling tens of thousands of dollars to U.S. political candidates. Also in May, he pleaded guilty to charges related to a Ponzi scheme that prosecutors said raised at least $60 million and swindled investors out of at least $20 million.

This description of the sentencing leads me to suspect that Hsu received a within-guideline sentence and that he will be appealing on a guideline-related loss calculation issue.

September 29, 2009 in White-collar sentencing | Permalink | Comments (0) | TrackBack

Seeking First Amendment and feminist perspectives on an escort's sentence

This new federal sentencing story out of California, which is headlined "Stanford Law School grad turned call girl sentenced to home detention," has so many interesting and comment-worthy dimensions.  First, the basics:

A Stanford Law School graduate was sentenced Monday on a federal tax conviction related to running a high-priced call girl service, punishment that includes restrictions on her ability to keep advertising as an escort while she's on probation.

During a hearing in San Jose federal court, U.S. District Judge James Ware concluded he needed to impose those restrictions on Cristina Warthen after federal prosecutors disclosed she's continued to advertise herself on the Internet as a high-priced escort, even as she awaited sentencing on federal tax evasion charges related to her days as an upscale prostitute named "Brazil."

Warthen gained notoriety when she was busted as a jet-setting call girl who sold her services to pay off her Stanford Law School debts.  She got her law degree from Stanford in May 2001, but quickly began to run a steamy Web site with offers to jet off for liaisons with clients in cities around the country, including New York, Chicago and Washington, D.C. She eventually pleaded guilty to failing to pay taxes on more than $133,000 she earned as a prostitute in 2003.

Under a plea deal with the government, Warthen was sentenced Monday to one year of home detention with an electronic monitoring device and three years of probation.  She also has to pay the government a total of about $243,000, less than the original $313,000 set out in her original plea arrangement.

Federal prosecutors agreed to the lower amount when Warthen demonstrated she could not pay it after her recent divorce from David Warthen, the co-founder of the online search engine Ask Jeeves, now known as Ask.com.  Court papers show the once-wealthy Web entrepreneur's finances were decimated by last year's stock market collapse, and he could not provide more money to his now-ex-wife, who says she's unemployed.

But Ware was dismayed to learn from federal prosecutors and probation officials that Warthen has continued to advertise her escort services as she has awaited sentencing. Assistant U.S. Attorney David Callaway told the judge Warthen has posted ads on the Internet offering "companionship" for $2,000 a night. "We all know that's a wink and nod and what she really is advertising is high end prostitution," Callaway said in court.

Warthen, who has been temporarily living in Seattle with her mother, has placed an escort ad on the Web. The image of her face is blurred in photographs on the Web ad, which boasts of a graduate degree from an "Ivy League university." Brian Getz, Warthen's attorney, objected to the government's request, saying she is a "law abiding citizen" who has a free speech right to advertise escort services as long as she's not breaking prostitution laws.  But Ware, noting that her sentence is already "lenient," was unmoved.

Now, a few First Amendment and feminist musings.  Because I am not a First Amendment scholar, I am not even sure of the basic doctrines that surround government prohibitions on forms of advertising/speech that might a form of illegal solicitation.  But I wonder if this kind of prohibition on internet advertising of guns or viagra would have been imposed on a male defendant who pleaded guilty to evading taxes for prior illegal sales of guns or prescription drugs.

September 29, 2009 in Criminal Sentences Alternatives, Offense Characteristics, Race, Class, and Gender | Permalink | Comments (18) | TrackBack

Important new NACDL report critical of modern drug court movement

As detailed in this news release, the National Association of Criminal Defense Lawyers has today released an important new report on drug courts.  The title of the press release. "Drug Courts Endanger Rights, Block Access To Needed Treatment for Drug Users: Defense Lawyers Call for Major Overhaul," highlights that the NACDL is not in favor of extant drug court models.  Here is the start of the press release, which provides a partial summary of the report:

Drug courts – first created 20 years ago as an emergency response to an epidemic of drug-related criminal cases that clogged courts and prisons – have in many places become an obstacle to making cost-efficient drug abuse therapy available to addicts and reducing criminal case loads, the nation’s largest association of criminal defense attorneys said today.

In too many places, access to treatment comes at the cost of a guilty plea for low-level drug offenses while hard cases are denied and offenders wind up in jail at great expense to taxpayers, a report by the National Association of Criminal Defense Lawyers found. The report flowed out of a two-year task force study of problem-solving courts.

Well-intended prosecutors and judges, generally with little input from the defense bar, often limit entry to treatment to offenders most likely to solve their own problems while insisting that “harder cases” go to jail, at considerable taxpayer expense, the study found. Minorities, immigrants and those with few financial resources are often under-represented in drug court programs.

The full report, which is titled "“America’s Problem-Solving Courts: The Criminal Costs of Treatment and the Case for Reform,” is available at this link.  This report strikes me as quite an important development in the drug court movement, and thus it is today's must-read for any and everyone who has tended to view drug courts and other problem-solving courts as a positive development and part of a healthy evolution away from unduly punitive tough-on-crime approaches.

This report also seems especially timely in light of President Obama's and Attorney General Holder's apparent affinity for drug courts (as noted in prior posts here and here and here).  Indeed, as evidence by many links below, there have been very few loud voices speaking up against modern drug courts until this new report by NACDL.

Some related posts about drug court programs and research:

September 29, 2009 in Criminal justice in the Obama Administration, Drug Offense Sentencing | Permalink | Comments (1) | TrackBack

"Roman Polanski Rep Says Justice Has Already Been Served"

The title of this post is the headline of this new ABC News piece concerning a famous old child sex case that has become new again thanks to the famously neutral Swiss.  Here is how this piece starts:

As director Roman Polanski remains in a Swiss jail and the debate about his arrest rages on, his Hollywood representative says attorneys are preparing a motion for his release. "The entire narrative surrounding this situation over the last 32 years has been wrought with complications and inconsistencies," Jeff Berg told "Good Morning America" today.

Polanski's arrest Saturday at the Zurich airport came at the request of a U.S. warrant on a 31-year-old statutory rape charge. Berg and Polanski's lawyers have expressed shock that he was taken into custody in a country he is known to frequent, even owning a chalet there. And Berg called the timing of the arrest, which occurred the same day Polanski was to have received an award at the Zurich Film Festival, "one of many cruel ironies" that Polanski has faced in his life.

Polanski's critics have seemed incredulous that Hollywood heavyweights like producer Harvey Weinstein are pleading for the freedom of a man convicted of intercourse with a 13-year-old girl, but Berg said he and Polanski's lawyers believe justice has already been served.

Polanski took a deal and pleaded guilty to one count of unlawful sexual intercourse and served 42 days in a California jail where he was psychologically evaluated. He has admitted he had sex with 13-year-old Samantha Geimer in 1977 after plying her with champagne and Quaaludes at the home of actor Jack Nicholson. "Roman was incarcerated. Roman did time in a state prison," Berg said. "My feeling to his critics is you have to look at a much more complex situation surrounding this case."

Now in her 40s, Geimer has said she forgives Polanski and doesn't think he should face further jail time.

Berg said Polanski fled the country in 1978 only after learning during a discussion with the district attorney outside a Los Angeles courtroom that the judge in his case was preparing to sentence him to a long prison term despite the plea deal. Polanski's rights were violated, Berg said, and the case was "plagued with prosecutorial and judicial misconduct."

Because of how old and opaque this case is, my feelings are both mixed and muted concerning what is going on now.  But I have an inkling that at least a few readers may have strong opinions, which all are welcome to share in the comments.

September 29, 2009 in Sex Offender Sentencing | Permalink | Comments (15) | TrackBack

Notable empirical examination of truth-in-sentencing laws in operation

I just noticed on SSRN this article by two European economists titled "Responses to More Severe Punishment in the Courtroom: Evidence from Truth-in-Sentencing Laws." Here is the abstract:

We investigate behavioral responses of agents in the criminal process to more severe punishments by analyzing the effects of Truth-in-Sentencing (TIS) laws in a large sample of individual criminal cases.  The TIS laws raised the effective punishment by requiring offenders to serve at least 85% of their sentence in prison. Differences between the U.S. states in the timing of adoption and the types of crimes covered provide a source of identification.  The TIS laws increased the likelihood that the defendant would be acquitted or the case would be dismissed. The prosecutors responded by offering less advantageous concessions in plea bargaining -- they became less likely to reduce the charges and the defendants in turn became less likely to plead guilty.  The expected sentence for an arrested offender declined by more than 10% through a combination of changes in the probability of conviction and the sentence imposed upon conviction.  The potential deterrent effect of the TIS laws was therefore partially mitigated by the behavioral responses.

September 29, 2009 in Data on sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

September 28, 2009

Ohio Supreme Court asked to stay next scheduled execution in wake of botched attempt

As detailed in this AP article, the Ohio death row inmate who is scheduled to be executed (for the first time) next week has today "asked the Ohio Supreme Court to delay his upcoming execution in light of problems with the state's last scheduled lethal injection."  Here are the basics:

Attorneys for Lawrence Reynolds fileda motion with the state's highest court Monday, days after a similar filing with a federal appeals court.

Reynolds' execution scheduled for Oct. 8 would be the first since the state's unsuccessful attempt at putting Romell Broom to death on Sept. 15....

Reynolds' lawyers argue that Ohio's lethal injection system should be investigated before he goes to the death chamber.

UPDATE:  This local coverage, headlined "Freeze on lethal injections sought: Courts are asked for a moratorium after IV problems," starts this way:

The ghosts of problem executions past combined with an aborted attempt two weeks ago are haunting state prison officials as death-penalty foes argue that Ohio's lethal injections should be halted, at least temporarily.

September 28, 2009 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (5) | TrackBack

"Homeless Georgia Sex Offenders Directed to Woods"

The title of this post is the headline of this ABCNews report that provides the latest example of some of the real-world consequences of sex offender residency restrictions.  Here is how the piece begins:

A small group of homeless sex offenders have set up camp in a densely wooded area behind a suburban Atlanta office park, directed there by probation officers who say it's a place of last resort for those with nowhere else to go.

Nine sex offenders live in tents surrounding a makeshift fire pit in the trees behind a towering "no trespassing" sign, waiting out their probation sentences as they face numerous living restrictions under one of the nation's toughest sex offender policies.  "It's kind of like a mind-game, it's like 'Survivor,'" said William Hawkins, a 34-year-old who said he was directed to the campsite two weeks ago after being released from prison for violating probation by failing to register as a sex offender in Georgia.

The muddy camp on the outskirts of prosperous Cobb County is an unintended consequence of Georgia law, which bans the state's 16,000 sex offenders from living, working or loitering within 1,000 feet of schools, churches, parks and other spots where children gather.

It's not the only place in Cobb County where offenders can live — there are hundreds of other sex offenders throughout the county living in compliance with the law.  But Ahmed Holt, manager of the state's sex offender administration unit, calls the camp a "last resort" for homeless offenders who can't find another place to live that complies with the law.

He said probation officers direct them to the outpost if other options fail, such as transferring to another county or state or sending them to a relative's place that meets the requirements. Homeless shelters and halfway houses are often not an option, he said, because of the restrictions that bar them from being near children.

Some recent related posts:

September 28, 2009 in Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

NY Times editorial assails "High Cost of Death Row"

Today's New York Times has this editorial contending that the high costs of the death penalty ought to lead cash-strapped states to move away from capital punishment.  Here are excerpts from a piece headlined "High Cost of Death Row":

To the many excellent reasons to abolish the death penalty — it’s immoral, does not deter murder and affects minorities disproportionately — we can add one more.  It’s an economic drain on governments with already badly depleted budgets.

It is far from a national trend, but some legislators have begun to have second thoughts about the high cost of death row. Others would do well to consider evidence gathered by the Death Penalty Information Center, a research organization that opposes capital punishment....

According to the organization, keeping inmates on death row in Florida costs taxpayers $51 million a year more than holding them for life without parole.  North Carolina has put 43 people to death since 1976 at $2.16 million per execution.  The eventual cost to taxpayers in Maryland for pursuing capital cases between 1978 and 1999 is estimated to be $186 million for five executions.

Perhaps the most extreme example is California, whose death row costs taxpayers $114 million a year beyond the cost of imprisoning convicts for life.  The state has executed 13 people since 1976 for a total of about $250 million per execution.  This is a state whose prisons are filled to bursting (unconstitutionally so, the courts say) and whose government has imposed doomsday-level cuts to social services, health care, schools and parks.

Money spent on death rows could be spent on police officers, courts, public defenders, legal service agencies and prison cells....

In contrast to some other abolitionist arguments, I am generally drawn to claims that modern capital punishments systems do not produce benefits that justify their economic costs.  But the suggestion that money "spent on death rows" could or should be spent on more "prison cells" reinforces my nagging concern (developed in this Harvard Law & Policy Review article) that the anti-death argument of most abolitionists have a tendency to cotribute to modern mass incarceration.

Some recent related posts on the costs of capital punsihment:

September 28, 2009 in Death Penalty Reforms | Permalink | Comments (15) | TrackBack

An early preview of Graham and Sullivan, the SCOTUS juve LWOP cases

Juve lwop

Writing in today's Los Angeles Times, David Savage has this preview of the two big Eighth Amendment cases to be heard this fall by the Supreme Court. The piece is headlined "Supreme Court to consider juvenile 'lifers': Does life without parole for minors who didn't kill constitute cruel and unusual punishment?". Here are excerpts:

According to Amnesty International, "The United States is the only country in the world that does not comply with the norm against imposing life-without-parole sentences on juveniles."

Nearly all of the estimated 2,500 U.S. prisoners serving life terms for juvenile crimes, the group said, were guilty either of murder or of participating in a crime that led to a homicide. But 109 inmates are serving life sentences for other crimes committed when they were younger than 18.

Sullivan's and Graham's lawyers do not claim the young men deserve to go free. "We are not asking for Mr. Graham to be released any time soon," attorney Bryan Gowdy said. "We are asking the court to declare unconstitutional a sentence of life without parole for these crimes. It would be entirely different if Mr. Graham had a meaningful opportunity for parole."

The question will be an early test of whether Justice Sonia Sotomayor, a former prosecutor, will align herself with the court's tough-on-crime conservatives or join with its liberals to strike down prison policies perceived as going too far.

Sullivan’s and Graham’s cases will be heard in November. Many lawyers and prosecutors said that until the Supreme Court agreed this year to take up the issue, they were unaware of juveniles receiving such sentences....

Florida leads the nation in sending teenagers to prison for life with no possible parole for crimes such as burglary, assault or rape. It has at least 77 such inmates. California and six other states also have at least one. "This is a hidden group. They don't get a lot of attention because there was no homicide," said Paolo Annino, a law professor at Florida State University who has compiled national data on these prisoners.

California officials said they were unaware of having four such inmates until they checked their database at Annino's request. Two years ago, California joined many other states in prohibiting the sentencing of young offenders to life in prison. But that measure did not affect inmates who had already been sentenced.

Annino and others point to two trends in the 1980s that led to juveniles serving life terms. First was the national move to abolish parole, reflecting fears that violent criminals could not be safely released. Second was the increased prosecution of young criminals as adults.

In defense of its life-in-prison policy, Florida's lawyers have pointed to several deadly attacks on European visitors carried out by young criminals. These violent incidents were "threatening the state's bedrock tourism industry," Florida's lawyers said in the opening paragraph of their brief to the Supreme Court in the Graham case.

Other recent posts on juve LWOP and the Graham and Sullivan cases:

September 28, 2009 in Graham and Sullivan Eighth Amendment cases | Permalink | Comments (0) | TrackBack

Another triple-digit federal sentence for ponzi schemer

This local article, headlined "Ponzi scheme leader sentenced to 100 years," highlights another triple-digit  federal sentence imposed on a white-collar offender earlier today.  Here are the details of a sentencing today that fell a bit short of the Bernie benchmark of 150 years' imprisonment:

A federal judge in Riverside this morning sentenced Richard M. Harkless to 100 years in prison for his role in running the MX Factors investment scheme, which took in nearly $60 million from more than 600 people between 2000 and 2003.

U.S. District Judge Virginia Phillips said Harkless had shown no remorse for his actions, either during his trial or in pre-sentence filings. The judge said many of Harkless’ victims were vulnerable to deception, and several lost homes or had to declare bankruptcy because of their losses.

Harkless, 65, was convicted in July on seven counts: three of mail fraud, three of wire fraud and one of money laundering. He faced a maximum sentence of 130 years in prison....

Harkless, who represented himself during his trial and sentencing, acknowledged the sentence amounted to a “death sentence,” but vowed to work to pay back victims.

Assistant U.S. Attorney Eric Vandevelde, who prosecuted the case, said after court proceedings that the sentence was “very fair” under the circumstances. “I think it sends a strong message, especially in this climate where so many investors have been vulnerable to fraud schemes,” he said.

September 28, 2009 in White-collar sentencing | Permalink | Comments (2) | TrackBack

September 27, 2009

"Forum: Does California need a sentencing commission?"

The title of this post is the headline of this piece in the Sacramento Bee that sets up yes/no commentary answers from leading voices in the sentencing reform debate in California.  Here is the set up, followed by links to the dueling commentaries:

For years, California has been considering a commission to coordinate sentencing guidelines and fiscal policy, and to pull together state and local corrections programs into a coordinated system.  In 2007, the Senate and the Assembly passed bills for a sentencing commission.  But the Legislature couldn't agree on a final bill, so the effort died.

This year, the dynamic changed.  The Senate approved of a sentencing commission as part of a larger prison reform bill, with the support of Gov. Arnold Schwarzenegger.  But the Assembly removed the sentencing commission from its legislation.  The final prison reform bill that passed and was signed by the governor did not include a sentencing commission.

Sentencing commissions, which have been implemented in more than 20 states, serve to propose new or revised sentencing guidelines for judges and prioritize bed space in states that struggle with overcrowded prisons.

Opponents of sentencing commissions say it is an attempt to soften punishment for criminals; those in favor say California's sentencing policies aren't working because the state relies overwhelmingly on incarceration rather than rehabilitation.

September 27, 2009 in State Sentencing Guidelines, Who Sentences? | Permalink | Comments (17) | TrackBack

A snippet of sex offender stories in the Sunday papers

As is the norm these days, the Sunday newspapers have no shortage of notable sex offender stories.  For example, the New York Times this morning brings us this piece, headlined "California Struggles With Paroled Sex Offenders."  Meanwhile, my own local paper, the Columbus Dispatch, had these two articles about sex offender regulations:

Additional stories covering similar themes include this local North Dakota piece, headlined "Registered sex offenders struggle to find housing" and this local Pennsylvania piece, headlined "General assembly works to close Megan's Law loopholes."

Of course, all of these significant and complex stories surrounding the challenges surrounding sex offender regulations will likely all be eclipsed by this new celebrity sex offender news: "Roman Polanski Arrested By Swiss On Underage-Sex Warrant From 1978." 

September 27, 2009 in Sex Offender Sentencing | Permalink | Comments (11) | TrackBack

A few SCOTUS scouting pieces to gear up for the new season

The new SCOTUS season is about to kick into high gear, with the Justices likely to announce a bunch of new cert grants this coming week and with a full slate of arguments to start the following week.  For sentencing fans, there are a lot of notable cases to watch in the cert pool and already on the Court's docket.  Of course, SCOTUSblog is the place to go for cert scouting, as evidenced by these three recent Petitions to Watch posts:

In addition, I enjoyed this Term preview piece in the National Law Journal by Marcia Coyle, which is headlined "High Court Justices to Take Up Lawyer Ethics, Errors: Six cases on the calendar will have direct consequences for the practice of law."  Here is how the piece starts:

How lawyers do their jobs — from the type of advice they give clients to the calculation of fees — moves to the fore in the new U.S. Supreme Court term in six cases that could dramatically alter the day-to-day practice of law.

The justices in recent terms typically have taken two or three cases — and sometimes none  — involving the legal profession.  The six cases this term have roots in the First Amendment, habeas corpus, bankruptcy law, civil procedure, privileged materials and the Sixth Amendment.

Readers are, of course, welcomed and encouraged to highlight SCOTUS cases and SCOTUS would-be cases they are watching closely in the comments.

September 27, 2009 in Who Sentences? | Permalink | Comments (4) | TrackBack