October 24, 2009
An appellate lawyer that every federal defendant should want for a sentencing appeal
This new piece by Tony Mauro in the National Law Journal, which is headlined "To Build Practice, Ex-Bush SG Embraces Liberal Clients," makes me hopeful that an old law school friend of mine might soon be representing some federal sentencing defendants. Here are snippets from the piece:
Until this summer, Paul Clement had never been hugged by a client. He'd been in George W. Bush's solicitor general's office for eight years, building a reputation as one of the most skilled appellate advocates of his generation as he argued the trickiest of cases before the U.S. Supreme Court and appellate courts. But, he acknowledged wryly, "In government, your client tends to be abstract -- the United States of America. Or, slightly less abstract -- the Securities and Exchange Commission."
Clement left as solicitor general in June 2008, before the presidential election that would have put him out of a job. He returned to King & Spalding in November to build a Washington appellate practice in a souring economy, and before a Supreme Court that was still accepting only 75 cases per term.
So in one case he argued on Oct. 14, and another set for Nov. 4, Clement has taken on tough-to-win cases that are far from standard fare for a former law clerk to Justice Antonin Scalia and a Bush-era legal icon: In the first, he argued for enhanced fees for plaintiffs lawyers in a civil rights case, and, in the second, he represents a pair of men who were wrongly convicted in the murder of a retired Iowa police officer. Which explains the hug....
Clement's former deputy, Thomas Hungar, who now works with Olson at Gibson, Dunn & Crutcher, cut Clement slack. "The practice mix tends to change when you leave the government," said Hungar, who said Clement's latest cases appeared to be "quite a switch."
Still, some can't resist the irony of Clement's new clientele. "Paul's invitation to join NACDL is in the mail," joked Jeffrey Green of Sidley Austin, who often works with the National Association of Criminal Defense Lawyers and argued against Clement's SG office in criminal cases. "We all have tremendous faith in Paul's intellect and prodigious argument skills as a new member of the dark side." More seriously, Green said that Clement's role in the Iowa case is another sign that "pro bono cases that no one wanted to touch a few years ago are now being fought over."
Clement argued Booker on behalf of the federal government and certainly helped convince the Court to adopt advisory guidelines in the Booker remedy opinion. Here's hoping that Clement might find a couple federal defendants still trying to get the full benefit of the Booker ruling worth representing on appeal. I suspect the NACDL would be happy to recommend some hot prospects for SCOTUS review even if he does not become a card-carrying member of the orgainzation.
"Arizona May Put State Prisons in Private Hands"The title of this post is the headline of this interesting New York Times article. Here is how it starts:
One of the newest residents on Arizona’s death row, a convicted serial killer named Dale Hausner, poked his head up from his television to look at several visitors strolling by, each of whom wore face masks and vests to protect against the sharp homemade objects that often are propelled from the cells of the condemned.
It is a dangerous place to patrol, and Arizona spends $4.7 million each year to house inmates like Mr. Hausner in a super-maximum-security prison. But in a first in the criminal justice world, the state’s death row inmates could become the responsibility of a private company.
State officials will soon seek bids from private companies for 9 of the state’s 10 prison complexes that house roughly 40,000 inmates, including the 127 here on death row. It is the first effort by a state to put its entire prison system under private control.
The privatization effort, both in its breadth and its financial goals, demonstrates what states around the country — broke, desperate and often overburdened with prisoners and their associated costs — are willing to do to balance the books. Arizona officials hope the effort will put a $100 million dent in the state’s roughly $2 billion budget shortfall.
“Let’s not kid ourselves,” said State Representative Andy Biggs, a Republican who supports private prisons. “If we were not in this economic environment, I don’t think we’d be talking about this with the same sense of urgency.”
Private prison companies generally build facilities for a state, then charge them per prisoner to run them. But under the Arizona legislation, a vendor would pay $100 million up front to operate one or more prison complexes. Assuming the company could operate the prisons more cheaply or efficiently than the state, any savings would be equally divided between the state and the private firm.
The privatization move has raised questions — including among some people who work for private prison companies — about the private sector’s ability to handle the state’s most hardened criminals. While executions would still be performed by the state, officials said, the Department of Corrections would relinquish all other day-to-day operations to the private operator and pay a per-diem fee for each prisoner.
I wonder if years from now we will be debating whether there needs to be a public option for prison care.
Mental illness cited by lawyers as reason to grant clemency to DC sniperThis Washington Post article, which is headlined "Sniper's lawyers ask for clemency, saying he's mentally ill," reports on the efforts by lawyers to prevent the execution of a high-profile capital defendant in Virginia. Here are the basics:
Attorneys for convicted sniper John Allen Muhammad said their client is mentally ill and they have asked Virginia Gov. Timothy M. Kaine (D) to spare his life. Thirteen people were shot, 10 fatally, when Muhammad and accomplice, Lee Boyd Malvo, went on a random shooting rampage around the Washington region in 2002.
Muhammad's lawyers said in a statement they asked Kaine on Thursday to commute Muhammad's sentence to life in prison. They said Muhammad's illness is "illustrated by brain damage, brain dysfunction, neurological deficits as well as his psychotic and delusional behavior."
The defense team said Muhammad's mental illness was exacerbated by his military service in the first Iraq war. They presented Kaine with audio interviews of attorneys, mental health experts and a witness.
Muhammad, now 48, is scheduled to be executed Nov. 10. His lawyers said they plan to file an appeal to the U.S. Supreme Court on Nov. 3. The U.S. Supreme Court has banned executing the mentally ill.
I would be truly shocked if Muhammad was granted clemency, unless perhaps every member of every victim's family supported clemency. And that itself would be shocking.
October 23, 2009
"Roman Polanski faces 2 years in prison if returned to L.A., Swiss officials say"The title of this post is the headline of this new item from the Los Angeles Times. Here are the details:
Swiss authorities said that director Roman Polanski could spend up to two years in prison if he was extradited back to the United States for sentencing in a sexual assault case. Officials said in a statement earlier this morning that U.S. officials formally asked Swiss officials to extradite the famed director, 76, to Los Angeles, where he sexually assaulted a 13-year-old girl more than 30 years ago. Polanski fled to Europe just before sentencing for that crime.
Los Angeles County prosecutors have refused to say what kind of sentence they would seek for Polanski if he returns to Los Angeles, and they could not immediately be reached for comment today.
Last month, prosecutors said the proceedings should pick up exactly where they left off in 1978 -- with a judge sentencing Polanski for a statutory rape charge. "He will appear before the court and the court will decide what his sentence is," said Sandi Gibbons, a spokeswoman for the district attorney's office, told The Times in late September, after Polanski was arrested in Zurich.
Legal experts, however, said Polanski has options beyond begging for leniency. There are a number of legal maneuvers, such as withdrawing his guilty plea, that could result in the case being dropped entirely or in a sentence of no prison time.
Recent related post:
District judge and lawyers not sure what to do in Nacchio case after sentence reversalThis notable local report concerning a high-profile white-collar resentencing proceeding highlights an all too common problem after a circuit court reverses an initial sentence in a complicated case:
A re-sentencing hearing date could not be set for convicted ex-Qwest CEO Joe Nacchio on Friday after the judge and attorneys puzzled over the scope of the appeals court ruling that sent the case back to district court.
The U.S. 10th Circuit Court of Appeals tossed out Nacchio’s six-year sentence on insider trading in July. The ruling left him convicted on 19 felony counts but found that the lower court erred when it calculated the financial scale of Nacchio’s crime....
The 10th Circuit appeals court found that Nottingham incorrectly based his sentence on the total stock sale instead of just Nacchio’s financial gain connected to the information Nacchio did not make public. A smaller financial gain could, under federal sentencing guidelines, mean less prison time and a smaller fine for Nacchio.
U.S. District Court Judge Marcia Krieger, the prosecution and defense had different ideas Friday about how broadly Nacchio’s sentence could be reconsidered.
Federal prosecutors and Nacchio’s defense lawyers will have until Nov. 2 to reach agreement or file arguments on whether all factors in the case should be considered in resentencing Nacchio, or whether the 10th Circuit’s decision left Krieger a narrower set of factors to consider.
Krieger scheduled court dates out to Jan. 2, 2010, but didn’t set a sentencing hearing. Krieger said she can’t set a sentencing date without knowing whether hearings over evidence or witness testimony will be necessary.
"Medical Marijuana Muddle"The title of this piece is the headline of this new commentaryfrom Jacob Sullum at Reason. The piece is subtitled "The Obama administration’s new policy may not make much difference in practice," and here are snippets that explain Sullum's concerns:
This week's memo, which White House spokesman Robert Gibbs says merely describes what "has been administration policy since the beginning of this administration in January," helps explain these apparent inconsistencies. It tells federal prosecutors in the 14 states that recognize cannabis as a medicine they "should not focus federal resources…on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana."
In California especially, that phrasing leaves a lot of wiggle room for federal meddling. Last fall the California Supreme Court rejected the idea that medical marijuana suppliers are legal as long as their customers designate them as "primary caregivers." Patients who are not up to growing marijuana on their own can still organize as "collectives" or "cooperatives," but local officials disagree with state officials and each other about what that means. Los Angeles County District Attorney Steve Cooley, for example, maintains that state law does not permit over-the-counter sales, which would make virtually all of the 800 or so medical marijuana dispensaries in L.A. illegal.
Cooley’s position may be welcomed by the DEA and by like-minded officials in jurisdictions such as San Diego, but it conflicts with the views of more cannabis-tolerant officials in places such as Oakland and San Francisco. It also contradicts guidelines issued last year by California Attorney General Jerry Brown, who says patient collectives may charge for marijuana, as long as they do not take in more revenue than is necessary to cover their overhead and operating expenses. Until the law is clarified by the courts or the legislature, the federal government will have plenty of opportunities to continue interfering with the distribution of medical marijuana.
Some recent related posts:
- "Attorney General Announces Formal Medical Marijuana Guidelines"
- "U.S. Support for Legalizing Marijuana Reaches New High"
- A potent pitch for decriminalizing marijuana
- Republican governor signals openness to legalizing marijuana
- "Marijuana Nation: The New War Over Weed"
- More calls for an end to the drug war and legalization of marijuana
- New poll has majority saying alcohol is more dangerous than marijuana
A complete set of links to Smart Sentencing from the Missouri Sentencing Advisory CommissionI received this afternoon this helpful e-mail with links to some documents that should be useful for all sentencing fans:
The Missouri Sentencing Advisory Commission presents the latest in statistics, information, research findings and evidenced-based practice to help make informed decisions about how to punish criminal behavior. The Commission launched Smart Sentencing, a periodic bulletin to keep judges, prosecutors, defense attorneys, probation officers and others concerned about sentencing issues current as to the latest information related to sentencing practices and their impacts...
The information in these bulletins is important and, we hope, useful. We are grateful to the research staffs of the Department of Corrections and David Oldfield, its director of research, and the Office of State Courts Administrator and Anne Janku, its research director, for compiling the statistics and writing these bulletins, and to Beth Riggert, communications counsel of the Supreme Court, for editing assistance. Here are the bulletins issued thus far:
New hate crimes bill requires US Sentencing Commission to complete mandatory minimum study
As detailed in this New York Times article, the "Senate voted Thursday to extend new federal protections to people who are victims of violent crime because of their sex or sexual orientation, bringing the measure close to reality after years of fierce debate." Though this federal criminal justice development is probably of much more symbolic than practical importance, the hate crime bill includes a provision that requires the US Sentencing Commission to produce a new study on the impact of mandatory minimum sentences.
This statement from Senator Patrick Leahy provides some helpful background on the bill. Here is how the statement starts and how it explains the mandatory minimum part of the story:
After more than a decade, Congress is finally set to pass the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009 as an amendment to the National Defense Authorization Act, and I expect the President to sign it promptly. I am proud that Congress has come together to show that violence against members of any group because of who they are will not be tolerated in this country....
This legislation was carefully crafted to respect constitutional limits and differences of opinion. It will combat acts of violence motivated by hatred and bigotry, but it does not target speech, however offensive or disagreeable, and it does not target religious expression.
I wish there had been more Republican support for this important civil rights amendment. Nonetheless, in the Senate we worked to address bipartisan concerns and issues. We incorporated Republican amendments mandating guidelines for hate crimes prosecutions, further changing First Amendment protections, and creating a new criminal offense for attacks against service members because of their service.
I am disappointed that the service members provision contains a mandatory minimum sentence because I believe that mandatory minimum sentences can have unintended and unfortunate effects on sentencing and on our criminal justice system. However, I was pleased that we were able to limit the provision to one modest mandatory minimum sentence and require the United States Sentencing Commission to study the effect of mandatory minimum sentences. I am also glad that we were able to pass this bill without adding a new Federal death penalty, which would have needlessly inserted a divisive issue into this legislation.
October 22, 2009
ABAJ coverage of SCOTUS cases on constitutionality of juve LWOP
In the November 2009 issue of ABA Journal magazine includes this article previewing the two juve LWOP cases to be heard by the Supreme Court next month. The piece is headlined, "Adult Time for Adult Crimes: Is life without parole unconstitutional for juveniles?", and here are excerpts:
In a pair of cases from Florida, Graham v. Florida and Sullivan v. Florida, the court must determine whether Roper’s reasoning — that juvenile defendants are fundamentally different from adult defendants — extends from the death penalty to life without parole. Arguments are scheduled for Nov. 9.
“Life without parole can be considered as death in prison and the penultimate sanction,” says Florida State University law professor Wayne A. Logan, who has written on juvenile life without parole. “The court granting cert in two cases signals its concern about juvenile justice, which is a welcome development. Life without parole has become a live issue in the wake of the Roper case.”...
Numerous amicus briefs have been filed on behalf of Sullivan and Graham seeking to persuade the court to extinguish LWOP sentences for juveniles. One of the more compelling comes from a group of former juvenile offenders who later achieved success, including actor Charles S. Dutton and former U.S. Sen. Alan K. Simpson. Dutton stabbed a person to death in a street fight at age 17, while Simpson committed arson on federal property, punched a cop and — in his own words — “was a monster.”
“We tried to present the views of several individuals who had been involved in criminal offenses when they were juveniles — some of whom may have been eligible for LWOP under particular state laws — and to explain what that kind of severe sentence would have meant for them,” says Washington, D.C.-based attorney David W. DeBruin, who filed the brief. “The individuals described in our brief had hope because they had the prospect of release. Knowing that they had a chance, they used the time in prison to resolve to do things differently and to obtain skills — and eventually they made outstanding contributions to society.”...
“Roper was wrongly decided, but it is manageable if contained on the death penalty side of the firebreak,” says Kent S. Scheidegger, legal director of the Criminal Justice Legal Foundation, the Sacramento, Calif., group that supports crime victims. But, he adds, Roper “should not be extended at all. These are sentencing policy decisions to be made by the people of the several states through the democratic process. Whether one agrees or disagrees with the decision, it is the people’s to make. Nothing in the Constitution assigns that decision to the federal judiciary.”
But experts agree on the importance of the cases. “There is a tremendous amount at stake in these cases when you consider that life imprisonment without the possibility of parole is almost equivalent to a death sentence and gives the offender no chance of relief or release or hope,” DeBruin says.
Some recent posts on juve LWOP and the Graham and Sullivan cases:
- Minnesota Supreme Court rejects constitutional arguments against LWOP sentence for 17-year-old murderer
- The (unpreserved?) procedural issues in Graham juve LWOP case
- Analyzing the cert grants in both Graham and Sullivan
- Does Roper suggest young juve LWOP is unconstitutional?
- Gearing up for the SCOTUS juve LWOP cases on the horizon
- New Heritage Foundation report defending juve LWOP sentences
- An early preview of Graham and Sullivan, the SCOTUS juve LWOP cases
- Should religious doctrines influence Eighth Amendment jurisprudence?
"Were hundreds of criminals given the wrong sentences because lawyers messed up a basic work sheet?"The title of this post is the sub-heading of this remarkable new Slate piece by Ray Fisman to which a helpful reader pointed me. Here is the start of today's must-read piece:
In early 2005, Emily Owens was halfway through her Ph.D. thesis in economics at the University of Maryland. Her topic: the deterrence effect of long prison sentences. She had just received data from the Maryland State Commission on Criminal Sentencing Policy on tens of thousands of cases that had appeared in the state's courts over the previous years, cases she hoped would help her close out her dissertation. But as she started working through the numbers, she came across thousands of inconsistencies and errors in the sentencing recommendations provided to judges by the commission. The errors ultimately translated into extra months and years of prison time for unlucky convicts and light sentences for lucky ones. What might have been a run of the mill economic analysis of crime and punishment turned into a shocking account of human error.
The particulars of this story are best understood by reading the full Slate piece. But this concluding paragraph to the piece will likely resonate for lots of folks outside of the Old Line State:
One lesson from the case of Maryland's work sheet errors is that multiple levels of evaluation helped to undo some of the damage (though you might not see it that way if you spent an extra couple of months in the slammer because your attorney can't do arithmetic). It's a crucial insight given that states around the country have limited or abolished the discretion of parole boards as a result of Truth in Sentencing laws. More generally, crime and punishment in America remains rife with prejudice and inconsistencies. The poor and uneducated are convicted at rates disproportionate to their crimes; jurists and judges alike are biased and sometimes outright irrational. Keeping some checks and balances in place — like the moderating effects of parole boards — might help to keep the justice system a little more just.
Rapper Lil Wayne cops a plea to New York gun possession charge
As detailed in this AP article, which is headlined "Lil Wayne pleads to attempted gun possession," New York's tough (and arguably unconstitutional) gun possession prohibition has brought down another celebrity. Here are the basics:
The Grammy-winning rapper Lil Wayne pleaded guilty to attempted weapon possession on Thursday, and expects to receive a one-year jail sentence. He previously had pleaded not guilty to illegal gun possession charges that carried at least 3 1/2 years in prison upon conviction.
Lil Wayne remains free on bail while awaiting his February sentencing. The somber-looking rapper did not speak as he left court. Police said a gun was found on his tour bus in Manhattan in 2007....
Police pulled over Lil Wayne's tour bus in Columbus Circle on July 22, 2007. They said they had seen and smelled marijuana smoke wafting out the door before the bus left a concert venue minutes earlier. Police said that as an officer approached, the rapper tossed away a Louis Vuitton bag containing a gun.
With so much legal uncertainty in the wake of the Supreme Court's Heller decision, I remain puzzled why prominent defendants like Plaxico Burress and Lil Wayne are apparently not even trying to press Second Amendment defenses before copping pleas that include significant jail time. Though these defendants might not ultimately prevail on such claims, I do not fully see the down side of raising constitutional concerns in the hope of perhaps securing a more favorable plea deal.
Some related posts on the celebrity gun possession cases:
- "Main Threat to Burress Is a Sentencing Law"
- Starting to make the Second Amendment case for Plaxico Buress
- Now that Plaxico Burress has been formally indicted for gun possession, will Second Amendment fans come to his defense?
- Why Second Amendment supporters need to be helping out Plaxico Burress
- Another prominent athlete presents another potential Second Amendment test case
- "In U.S., Record-Low Support for Stricter Gun Laws"
New York Times editorial calls for ignition locks for all drunk driversThis morning's New York Times has this new editorial headlined "Progress on Drunken Driving." Here are excerpts:
An enlightened measure signed this month by California’s Republican governor, Arnold Schwarzenegger, will require those convicted of drunken driving — including first-time offenders — to install special devices that prevent cars from operating if the driver is drunk. The large pilot program, which covers the 14 million people living in Los Angeles, Sacramento and two other counties, adds important momentum to the national campaign by Mothers Against Drunk Driving to expand the use of the life-saving technology.
Mandating the ignition-interlock devices for all drunken-driving offenders is smart safety policy. Once installed, the vehicle will not start until the driver first blows into the device and registers an alcohol level below the legal limit. Offenders who commute to work by car can keep their jobs, but they cannot drink and drive....
There are 11 states that require both first offenders and repeaters to use ignition-interlock devices for an assigned period. Most programs were enacted in the past two years, and the data are still building. But for California, where recidivists make up more than a quarter of annual drunken-driving arrests, the dramatic results logged in New Mexico are encouraging. Between 2004 and 2008, New Mexico experienced a 65 percent drop in drunken-driving recidivism. Drunken-driving fatalities in the state dropped 35 percent.
California’s large-scale embrace of interlocks should help embolden lawmakers in states like New York, where similar proposals face predictable, shortsighted opposition from the alcohol industry. Congress should also take action by conditioning federal highway money on requiring ignition interlocks for all convicted drunken-driving offenders.
Like the NY Times, I am a big fan of this technocorrections approach to tackling the pernicious problems of drunk driving. I hope that there will be continued positive results in jurisdictions like New Mexico that have been at the forefront of this form of technocorrections.
Some related posts on sentencing drunk drivers:
- Getting tougher on drunk driving
- Why do we worry so much more about sex offenders than drunk drivers?
- Technology versus toughness to combat drunk driving
- Undue leniency for drunk drivers?
- More discussion of leniency for drunk drivers
- Is capital punishment for drunk driving morally required?
- More examples of undue leniency shown to repeat drunk drivers
- "Some Coloradans drive until they kill"
Judge Sesssions confirmed as new Chair of US Sentencing Commission
I am pleased to be able to report this Senate confirmation news: "Senators have unanimously confirmed ... William Sessions to be Chair of the United States Sentencing Commission." More details are available in this release from the USSC.
Because Judge Session was already a Vice-Chair of the USSC, this development is neither surprising nor likely to radically change the ways in which the USSC does business. Nevertheless, it is still notable and important than an Obama appointee is now officially in charge of Sentencing Commission.
"Court rejects governor's plan to solve prison overcrowding"The title of this post is the headline of this report from the San Jose Mercury News. Here are the basics on the latest twist and turn in the on-going saga of California prison reform:
A federal court Wednesday rejected Gov. Arnold Schwarzenegger's plan to solve California's prison overcrowding crisis, giving the state three weeks to devise an alternative or risk an order that seizes control of how more than 40,000 inmates are released from the prison system over the next two years.
In a seven-page ruling, a three-judge panel found the governor's plan for reducing prison overcrowding inadequate. The judges said it failed to comply with their August order requiring the state to come up with a proposal to remove about one-quarter of the more than 150,000 inmates now crammed into California's prisons.
Schwarzenegger and chief prison officials in September responded to the August order with a plan that would reduce the inmate population by only about 20,000 inmates over the next three years, less than half of what was sought by the judges. State officials maintain their plan balanced the need to reduce prison overcrowding with public safety concerns.
But 9th Circuit U.S. Court of Appeals Judge Stephen Reinhardt, San Francisco U.S. District Judge Thelton Henderson and Sacramento U.S. District Judge Lawrence Karlton found otherwise, and ordered the state to come back with a fresh plan in 21 days. Otherwise, the judges said they would consider alternative plans from lawyers for California's inmates and issue an order that will meet their goal of getting the inmate population down to 137 percent of the prison system's capacity.
Thanks to this post at How Appealing, one can find lots of other major media coverage of this development, as well as this link to yesterday's order of the three-judge U.S. District Court for the Eastern and Northern Districts of California.
October 21, 2009
Fifth Circuit (properly) dodges whether federal prohibition on gun sale to a 19-year-old is constitutionalThanks to this post at The Volokh Conspiracy, I see that the Fifth Circuit yesterday issued a brief ruling in US v. Bledsoe, 08-51217 (5th Cir. Oct. 20, 2009) (available here), in which a 19-year-old defendant had pled guilty to paying a third-party to purchase a gun for her from a licensed dealer because she was prohibited by federal law from buying a gun until age 21. Here is the notable part of the opinion for Second Amendment fans:
Bledsoe, who was nineteen at the time of the purchase, argues that the proscription in § 922(b)(1) on the sale of handguns by federally-licensed dealers to people under twenty-one violates her Second Amendment individual right to keep and bear arms, as recently recognized in District of Columbia v. Heller, 128 S. Ct. 2783, 2822 (2008). Bledsoe further argues that the overall age scheme in § 922 violates the equal protection component of the Due Process Clause of the Fifth Amendment.
We do not need to reach the substance of Bledsoe's arguments. Bledsoe is not being charged with violating § 922(b)(1), but of conspiring to make a false material statement in the purchase of a firearm, which she admitted doing. The Supreme Court has stated that "a claim of unconstitutionality will not be heard to excuse a voluntary, deliberate and calculated course of fraud and deceit. One who elects such a course as a means of self-help may not escape the consequences by urging that [her] conduct be excused because the statute which [s]he sought to evade is unconstitutional." Dennis v. United States, 384 U.S. 855, 867 (1966).
The Fifth Circuit ruling on the merits seems spot-on, but it also suggests that it is only a matter of time before a sympathetic 20-year-old (perhaps one who serves as a member of our military reserves) with a helpful lawyer makes a direct attack (perhaps in civil suit seeking a declaratory judgment) on the overall age scheme in § 922. Indeed, I am a bit surprised that I've not seen this issue litigated before, though perhaps there are lower court cases that just have not yet produced a ruling.
Of course, the really hard broader question after Heller is what is the age at which the government can completely prohibit gun possession. Though many cases hold in various settings that juveniles get reduced rights relative to adults, I do not think there are too doctrines which make an important constitutional right completely unavailable to teenagers. At some point, the Supreme Court is surely going to have to address this issue (though probably not until most persons who were teenagers at the time of Heller are well into adulthood).
A potent pitch for decriminalizing marijuanaEthan Nadelmann, the executive director of the Drug Policy Alliance, has this new Politico commentary titled "Now, let’s decriminalize marijuana." The piece praises the new US Justice Department guidelines that discourage federal prosecution of persons complying with state medical marijuana laws (basics here), and the piece concludes with these notable insights, predictions and pitches:
A new Gallup Poll out Monday found that the proportion of Americans who favor making marijuana legal is now 44 percent — almost double what it was in the mid-1980s. Among Democrats, support for legalizing marijuana jumped from 41 percent in 2005 to 54 percent now. Obama’s drug czar, Gil Kerlikowske, thinks he’s protecting the president by repeatedly insisting that “marijuana legalization is not part of my vocabulary or the administration’s,” but it’s going to be increasingly difficult for him to maintain that posture if support for making marijuana legal continues to increase.
I don’t expect Obama to provide any sort of bold leadership on the marijuana issue, mostly because presidents rarely provide any sort of leadership on hot-button issues involving cultural conflict, personal behavior and morality. Both the new guidelines, and the drug czar’s stated desire to avoid the marijuana issue as much as possible, suggest that the Obama administration prefers to let this issue play out at the state and local level, with little in the way of federal support or interference.
Neither the administration nor Congress is ready for a serious debate on medical marijuana, much less on ending marijuana prohibition, at this time. The only members of Congress who have been willing to introduce marijuana decriminalization legislation are Rep. Barney Frank (D-Mass.) and libertarian Rep. Ron Paul (R-Texas). Both know that many of their colleagues agree in principle, but no Republicans and only a handful of Democrats are ready to say so publicly.
It’s only a matter of time before marijuana is taxed, controlled and regulated in the United States. The tragedy is that tens of billions of dollars will continue to be wasted, and millions of people arrested and otherwise harmed by the marijuana laws, until that time . It’s up to us — as responsible citizens who care about freedom, justice and compassion — to ensure that this day comes sooner, not later.
Some recent related posts:
- "U.S. Support for Legalizing Marijuana Reaches New High"
- Republican governor signals openness to legalizing marijuana
- "Marijuana Nation: The New War Over Weed"
- Talk of drug courts, but not major policy changes, in drug war from Obama team
- "America Should Decriminalize Drugs":
- Thoughtful academic thoughts on ending marijuana prohibitions
- "Time For Marijuana Legalization?"
- Renewing a lawyerly pitch for ending drug prohibition
- More calls for an end to the drug war and legalization of marijuana
- New poll has majority saying alcohol is more dangerous than marijuana
"Facebook membership could prove costly for sex offender"The title of this post is the headline of this notable local article from New York. Here are some of the particulars from the start of the article:
A convicted sex offender is facing up to three years in prison for neglecting to disclose his past while joining the Facebook social networking site. Angelo Oesch, 25, of Colonie, also faces 10 years post-release supervision for failing to register and violating his probation.
He admitted having two Facebook accounts during a Tuesday appearance before Judge Thomas Breslin in Albany County Court. Oesch had also joined the eHarmony dating Web site, as well as the AIM instant messaging service for America Online.
Authorities say Oesch was convicted in June of committing a criminal sex act for having sexual contact with a person less than 15 years old. He is a Level 1 offender, which is considered the lowest risk of the three tiers of offenders. He has been living in a motel on Central Avenue in Colonie, authorities said.
Though this particular defendant does not seem well positioned or interersted in bringing a constitutional challenge to these kinds of charges, I suspect it is only a matter of time before some sex offenders start claiming that broad prohibitions on their on-line activities raises First Amendment issues.
Georgia carries out uneventful lethal injection execution
As reported in this local article, headlined "State executes pizza store killer," Georgia officials appeared to have no problem with a lethal injection protocol last night. Here are the basics:
Condemned inmate Mark McClain was killed by lethal injection at 7:24 p.m. Tuesday in Jackson....
McClain did not issue a final statement. When asked if he wanted a prayer said for him, he replied, "No, I'm fine." He lay expressionless and made no eye contact with the attorneys, prison officials and members of the media who witnessed his execution. As his death drew near McClain's ruddy complexion turned pale. His body lunged forward slightly as the potassium chloride raced through his veins, but otherwise his passing was quiet. His execution, unlike most, kept to schedule....
McClain was sentenced to death by a Richmond County jury for the 1994 murder of the Domino's Pizza store manager. Brown, 28, was shot once in the chest for the $130 in his till.
McClain was at peace with his fate, said attorney Brian Kammer. "Mark had become a person of deep religious faith, and he had a sense of equanimity through this whole process,"Kammer said. "He had hoped common sense would prevail." McClain acknowledged shooting Brown, but claimed it was unintentional. Jurors sided with the prosecution, who labeled McClain an experienced criminal who "preferred to kill."...
McClain was the third person executed in Georgia this year and the 45th put to death since 1983, when the state resumed executions after the U.S. Supreme Court ruled them to be constitutional.
Georgia juries convicted 55 people of committing a murder during an armed robbery in 1995, the year McClain was sentenced. Prosecutors sought the death penalty in 16 of those cases, but McClain was the only one condemned to die. "It's a crime that would not garner the death penalty these days," Kammer said.
Report on start of US Sentencing Commission regional hearing in DenverThe Denver Post has this new article, headlined "U.S. Sentencing Commission hears from judges, prosecutors in Denver," reporting on the start of the USSC's latest regional hearing. Here are some of the details:
A federal judge in Denver told the U.S. Sentencing Commission he is concerned about the treatment of war veterans in the criminal court system and the fairness of sentencing in some child-pornography cases.
The commission solicited testimony Tuesday from federal judges, prosecutors, probation officers and community groups during a public hearing at the Hyatt Regency hotel in downtown Denver. The hearing continues today with testimony from federal public defenders and more district judges....
U.S. Senior District Judge John L. Kane asked the commission for more clarity about why the federal sentencing guidelines are set to certain terms for various offenses. The judge said he has asked lawyers and probation officers why a particular sentence needs to be applied and often hears, "because the guidelines say so."
"It's not a matter of logic or a matter of reason," Kane said. "None of them could answer the following question — 'Why do the guidelines recommend that particular range?' "If, as a sentencing judge, I am to consider the advice of the guidelines and follow it, then the reason for the guidelines must be considered," Kane said. "Sometimes a reasoned argument can change a judge's mind, but otherwise what we have is an ideological food fight."
Colorado U.S. Attorney David Gaouette testified he is concerned judges are inconsistent in following the commission's sentencing guidelines. "Of the six federal judges in our district, three follow the guidelines, one sometimes does and two do not use the guidelines," he said. "One judge has told one of my (prosecutors) that the sentencing guidelines are arbitrary and would not be followed."
October 20, 2009
Federal sentence for receiving child porn includes forfeiture of homeThis local article from Kentucky, which is headlined "Lexington man sentenced to 15 years, forfeits home in child the sentencing of a child porn case. Here are the details:
A Lexington man must spend more than 15 years in prison and forfeit his Chevy Chase home after pleading guilty to child pornography charges, a federal judge ruled Tuesday.
Joseph Robert Leitner, 62, pleaded guilty in June to one charge of receiving child pornography. He admitted collecting child pornography for years and had computers and CDs that contained more than 30,000 images of child pornography, some involving children as young as 6, according to his plea agreement. There were approximately 100 CDs and several computers seized during the search of Leitner's residence in June 2008.
Senior Judge Karl S. Forester sentenced Leitner Tuesday to 188 months in prison. The federal government will also seize Leitner's home at 417 Cochran Road because of the high volume of images and the length of time Leitner used his home to download and view child pornography.
Leitner is the first defendant to forfeit his home because of a child pornography conviction in the Eastern District of Kentucky, according to the U.S. Attorney's Office for the Eastern District of Kentucky. Assistant U.S. Attorney Hydee R. Hawkins, who prosecuted Leitner, said the sentence sends a message to child predators that "we are going to take the very place you used to exploit children."
Leitner said during sentencing that he had not downloaded or watched child pornography since 2000. "They probably were dusty as the devil when you guys found them," Leitner said of the CDs seized from his home. "I hadn't watched them in years."...
A man who said he was molested by Leitner more than 50 years ago also testified during Tuesday's sentencing. Another man said testified that Leitner molested him for six years, beginning when he was 3.