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November 3, 2009

Fascinating newspaper report on the impact of Ring in Idaho

This local article from Idaho suggests that the Supreme Court's 2002 Ring decision concerning jury trial rights in capital cases has had a profound impact on the operation of the death penalty in The Gem State.  The article is headlined "Idaho prosecutors opting not to seek death penalty: Only 2 Idaho counties have asked for the death penalty in murder cases since 2003, and Ada hasn’t pursued it since being denied twice in 2005," and here are excerpts:

[I]n death penalty cases in Idaho since 2003, the jury is the ultimate arbiter.  And rather than take death penalty cases to juries, prosecutors across the state are opting not to pursue executions at all or are agreeing to plea deals that put killers in prison for life.  Prosecutors have to weigh the high costs of pursuing the death penalty and the suffering of victims' families through years of appeals against a sentence that is largely symbolic.

Just one person in half a century has been executed in Idaho — double-murderer Keith Eugene Wells, who dropped all appeals and demanded a lethal injection in 1994.  And since the U.S. Supreme Court in 2002 said that juries, not judges, must issue the death penalty, prosecutors around the state have been forced into a guessing game: Even if jurors believe the accused committed the crime, will they pass a death sentence?

So far, only Ada and Canyon counties have asked juries to issue the death penalty, and less than half of those cases resulted in death sentences.  Not one of Idaho's 42 other counties has taken a death penalty case to trial.  Of the four attempts in Ada County, juries sentenced two men to death and spared the lives of two others — including one in a child-death case....

Recent experience has shown Ada County prosecutors how difficult it is to persuade jurors to hand out a death sentence.   In 2004, juries called for the execution of convicted killers Azad Abdullah and Erick Hall, but in 2005 spared the lives of Jason McDermott and Ignacio Sanchez even after finding both guilty of first-degree murder.

In McDermott's case, one juror out of 12 could not get past defense evidence that showed McDermott had a brain injury from being shot in the head, mitigating his execution-style slaying of 18-year-old Zachariah Street in May 2003.   After Sanchez was found guilty of beating his girlfriend's 2-year-old daughter to death over a period of weeks in 2003, defense attorneys showed he had been physically abused as a child, had battled with depression and other mental illnesses, and had used methamphetamine since he was 12....

Such uncertainty has helped lead to settlements in a number of death penalty cases in Idaho since the 2003 law change.  Former Canyon County Prosecutor Dave Young dropped pursuit of the death penalty against Alofa Time in 2007 in exchange for a guilty plea to first-degree murder.  Time is now serving life in prison, without the possibility of parole, for killing and beheading his ex-wife, Theresa, in 2006.  Young said he made the deal "to spare the family from a lengthy trial and being forced to relive this horrific crime."...

In 2006, Jim Junior Nice avoided the death penalty after cutting a deal with Twin Falls County Prosecutor Grant Loebs to plead guilty to murdering his three young children in Twin Falls the year before.  Prosecutors say Nice used rat poison and over-the-counter medication to kill 6-year-old twins Justin and Spencer and their 2-year-old sister, Raquel.

Loebs said he made the deal in the Nice case for a variety of reasons - including the fact that Nice's guilty plea means he will never leave prison.  But he did say Nice's attorneys would have put on mitigation evidence that their client suffered from mental illness.  Figuring out whether or not to seek the death penalty "is a tough, tough calculation to make," said Loebs. "It's one of the toughest things you have to do as a prosecutor."

November 3, 2009 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (3) | TrackBack

Are there any crime and justice issues or stories to follow this election day?

I am about to head out to vote this morning, and here in Ohio we have three state-wide ballot issues that concern only non-criminal law matters (unless one considers an initiative to authorize casinos in four Ohio cities a criminal law matter).  I head out wondering if there are any notable crime and justice issues or stories worth following closely this odd-year election day.

I see from this helpful website that Mainers are today voting on a medical marijuana issue and that New Yorkers have a prisoner re-entry issue to consider.  Also, the New Jersey gubernatorial race arguably has a criminal justice angle due to the fact that the Republican candidate, Chris Christie, used to be the state's US Attorney.  But I do not sense that any aspects of today's voting patterns will provide any sense of the national mood on any major criminal justice issues.

I have noticed that some "classic" tough-on-crime rhetoric has been showing up a bit more on the campaign trail lately.  Still, I suspect in 2010 and probably also in 2012, as was the case in 2006 and 2008, that crime and justice issues will be taking a back seat to other local and national concerns.

November 3, 2009 in Who Sentences? | Permalink | Comments (4) | TrackBack

"Death penalty cases costly; instead, seek life sentences"

The title of this post is the headline of this commentary coming from The Spokesman Review in reaction to an intriguing debate over a potential capital case in Washington.  Here is how the piece starts:

Stevens County is balking at accepting the death penalty case of Christopher H. Devlin, because of the enormous costs associated with mounting such cases.  It’s a valid concern, because the county is already facing a $1.2 million deficit.

“I have no doubt that the defense cost of Mr. Devlin and the costs to prosecute this case would be a serious blow to the solvency of Stevens County,” county prosecuting attorney Tim Rasmussen told The Spokesman-Review.  He noted that a similar case cost Okanogan County $750,000.

While cost shouldn’t be the only concern in prosecutions, it’s become clear that a death penalty charge imposes a financial burden that isn’t worth it.  That’s also true of larger counties, especially as they try to dig themselves out of deep budgetary holes.  It can mean more pressure to reach plea agreements in other cases or employee layoffs or cutbacks in service.

The Devlin case was investigated by the Spokane County Sheriff’s Office and the death penalty charge was brought by Spokane County, because the body of Daniel D. Heily was found near Deer Park.  But investigators have since heard from a co-defendant who says the killing took place in Stevens County.

Spokane County Superior Court Judge Jerome Leveque ruled last month that because the crimes took place in two counties, the defendant could decide where to mount a defense.  Devlin chose Stevens County.

Rasmussen contends that the judge wants Spokane County to prosecute the case with a Stevens County jury. He says Spokane County should pick up the tab. Spokane County Deputy Prosecutor Dale Nagy says his interpretation is that the entire case — costs included — shifts to Stevens County.

This financial hot potato shows why it is a wiser course to seek life sentences, with no possibility of parole, for defendants like Devlin.

Some recent related posts on the costs of capital punsihment:

November 3, 2009 in Death Penalty Reforms | Permalink | Comments (5) | TrackBack

Effective commentary complaining about undue leniency for drunk drivers

This column in the Baltimore Sun, which is headlined "Not just 'liberals' to blame for drunk-driving tragedies," echoes the complains I have long had about our collective failure to be more effective in sentencing drunk drivers.  Here are snippets:

Liberal, conservative, moderate — judge, lawyer, defendant or next of kin, or state legislator — it doesn't matter.  When it comes to drunken driving in Maryland, and most of this country, we are almost all enablers.

Here's a number to consider: 25,120. That's the number of Marylanders who had three or more convictions for driving while intoxicated as of April 2008.  Mothers Against Drunk Driving came up with that figure, based on statistics from 20 states and the District of Columbia compiled last year by the National Highway Traffic Safety Administration....  Assuming most of them still drive — and that's a fairly safe assumption in this state, and one that MADD makes — that's a huge number of potential dangerous encounters for any of the rest of us who drive....

From what I've seen over the years — following drunk-driving and auto manslaughter cases in my own newspaper, and actually sitting in city and suburban courtrooms as defendants appear before judges — coddling of drunken drivers cuts across society.  It has not been liberalism at work in the making of laws and the setting of sentencing guidelines.  If anything, a libertarian philosophy has defied efforts to restrict those who drink and drive, from hard-core punishment (heavy fines and long jail sentences) to outright prohibitions on future driving....

We don't take the zero-tolerance approach.  You can get caught drinking while driving in Maryland and still drive a motor vehicle — if not immediately during a license suspension, then certainly in the near future.  Driving a motor vehicle is a privilege, but many view it as a right, or a right with a few inconvenient conditions once in a while.

Even the measure that many agree would be effective — requiring use of an ignition interlock device, a dashboard Breathalyzer that keeps a car from starting if the driver isn't sober — presumes that someone established as a danger will be allowed to drive again.  That's the reality, and I accept it. We don't have one-time loser laws for drunken drivers and probably never will.

So requiring the device would seem to make sense.  Eleven states made interlocks mandatory. Virginia, supposedly far more conservative than Maryland, mandated the devices for people who have had two convictions.... In Annapolis last winter, a similar requirement passed a Senate convinced of its potential effectiveness. But the measure never got out of a House of Delegates committee chaired by Joe Vallario, who in his other life is (can you guess?) a defense attorney.

Some related posts on sentencing drunk drivers:

November 3, 2009 in Offense Characteristics | Permalink | Comments (4) | TrackBack

November 2, 2009

"Man Charged With Filming Sex With 14-Year-Old Says He Is 'Going To Jail For Love'"

The title of this post is the headline of this interesting federal sentencing story from Tennessee, which actually raises some interesting post-Booker sentencing issues.  Here are the basics:

A 23-year-old Winchester man was sentenced in Chattanooga Federal Court on Monday to serve four years and four months in federal prison for filming sexual encounters with a 14-year-old girl. Mary Ellen Coleman, attorney for Brad A. Davis, said he "cared" for the girl and had no intention of distributing the videos of her.

Davis, after being sentenced by Judge Sandy Mattice, said, "I guess I'm going to jail for being in love."  Davis had been charged after a Winchester attorney turned a tape over to the Winchester Police Department.  The attorney said he got it from a member of the victim's family.

Authorities said Davis made a video of the girl having consensual sex with him and also used his cell phone to film her performing a sexual act on him.  He also used a Nikon camera to take 22 photos of her nude in provacative positions....

The sentencing range for Davis was 46-57 months.  Attorney Coleman asked for a lighter sentence, noting that former Baylor teacher/coach got diversion after having sexual encounters with a 16-year-old girl.  Prosecutor John MacCoon said that was in state court, and he said federal judges are not to take state sentencing into account but to focus on uniformity in the federal system....

Prosecutor MacCoon said the Davis situation became a federal case rather than a statutory rape charge in state court because he took the videos and pictures.  He pleaded guilty to possession of child pornography.

November 2, 2009 in Sex Offender Sentencing | Permalink | Comments (12) | TrackBack

Effective coverage of the SCOTUS Seale dodge

The New York Times has this effective piece, headlined "Court Declines Case of Klansmen in ’64 Slayings," and The BLT has this effective entry, headlined "Supreme Court Rejects 5th Circuit Plea in Kidnap Case," discussing the notable (lack of) action from the Supreme Court in a high-profile criminal case.  Here are the factual basics from the Times piece:

The Supreme Court on Monday said it would not review a case arising from the 1964 kidnapping and slaying of two black teenagers along the Mississippi-Louisiana border, an episode that continues to stir legal debate as it stokes memories of the ugliest racism.

The court declined to take the case of James Ford Seale, a cancer-stricken former Ku Klux Klan member now in his mid-70s, who was convicted more than three decades after the killings of Charles E. Moore and Henry H. Dee.  Mr. Seale is serving a life term for kidnapping and conspiracy, and the Supreme Court’s action on Monday means his conviction stands....

The Supreme Court had been asked by the United States Court of Appeals for the Fifth Circuit to decide whether too much time had passed between the crime and Mr. Seale’s arrest in early 2007 for him to be prosecuted on a federal kidnapping charge.  Over the objections of Justices John Paul Stevens and Antonin Scalia, the court turned down the Fifth Circuit’s request.

Hard-core fed courts fans will be interested in how The BLT describes the context of the Justices' choice to turn down the Seale case now:

It's a rarely used, dusty corner of the Supreme Court's jurisdiction.  And on Monday the Court decided to leave it undisturbed, rejecting a request by the U.S. Court of Appeals for the 5th Circuit to resolve a question that could affect prosecution of long-ago civil rights cases in the south.

Under federal law dating back to 1802, one way to get a case before the Supreme Court is for a federal appeals court to certify the question it raises -- in other words, asking the justices to decide the question and instruct it on what to do.  It has never been a frequently-traveled path to the Supreme Court, but it has been allowed from time to time -- though not since 1981.  In a 1957 case, the Court suggested the appeals courts should resolve knotty questions themselves without certifying a question, except in "rare instances."

In July, the 5th Circuit invoked the certificate method to answer a question on which it had split 9-9: what statute of limitations applies in the federal prosecution of James Ford Seale, a Ku Klux Klan member accused in the kidnap and murder of two black teenagers in Mississippi in 1964....

According to a Justice Department tally, the issue could affect 22 possible prosecutions of racially-motivated crimes from the 1950s and 1960s. A majority of the 5th Circuit certified the question to the Supreme Court, calling it "an issue of first impression and of national importance."  The 5th Circuit said it was not ignoring its responsibility to decide cases, but that the judges were "simply unable to reach a decision."

The Supreme Court on Monday dismissed the 5th Circuit's plea, over the dissent of Justice John Paul Stevens, joined by Justice Antonin Scalia.  The issue is "narrow, debatable, and important," Stevens said, and should have been taken.  "I see no benefit and significant cost to postponing the question;s resolution."  Stevens also lamented the virtual disappearance of the certification process. "The certification process serves a valuable, if limited, function.  We ought to avail ourselves of it in an appropriate case."...

Mayer Brown partner Stephen Shapiro says the high court may have rejected the 5th Circuit's plea now because it is at an interlocutory stage and "a dozen other issues" are still pending.  Shapiro said the Court is still in its phase of keeping its docket lean, and it may be concerned that "if you grant one now, next year there will be 20."

Steve Vladeck, professor at American University Washington College of Law, said the Court's action Monday is "hardly surprising, but disappointing."  With the 5th Circuit split, the issue will go unresolved for months if not years.  "If the certification procedure is still on the books, when else would you use it if not in a case like this?"

November 2, 2009 in Who Sentences? | Permalink | Comments (5) | TrackBack

"Is Colorado’s U.S. Bench Embracing Sentencing Responsibility?"

The title of this post is what would have been a praiseworthy headline for this local article from the publication Law Week Colorado.  Instead, as a click through will show, the publication went with the more provocative headline of "Is Colorado’s U.S. Bench Ignoring Sentencing Guides?". The article is a bit more balanced that the headline, and here are snippets:

Have some of Colorado’s federal trial judges turned their backs on sentencing guidelines? Colorado’s top federal prosecutor thinks so.  At least one judge and the state’s federal public defender disagree.

Testifying before the U.S. Sentencing Commission at a public hearing in Denver last week, David Gaouette, U.S. attorney for Colorado, said that certain unnamed district judges have routinely disregarded sentencing guidelines in the four years since the U.S. Supreme Court’s Booker decision. Though guidelines are no longer mandatory, judges are still supposed to consult them before issuing sentences.

“The advisory nature of the sentencing guidelines, post-Booker, has resulted in greater inconsistencies in sentences among our judges,” Gaouette wrote in testimony he submitted to the commission.   He said he was particularly concerned that the departures from the guidelines result in more lenient sentences. “Of the six federal judges in our district, three follow the guidelines, one sometimes does, and two do not use the guidelines.  One judge has told one of my AUSAs [assistant U.S. attorneys] that the sentencing guidelines are arbitrary and would not be followed.”

Gaouette declined to identify the judges he thought ignored the guidelines, or to specify which judges he counted among the six he mentioned.  Colorado has five federal judges, who have mixed criminal and civil dockets, and five senior judges, who are allowed to exclude criminal or civil cases if they choose.

Commission Chair Ricardo Hinojosa seemed surprised by Gaouette’s claims. “I have yet to hear of judges just coming out on the bench and saying it’s not going to be a guideline sentence,” Hinojosa said.  Gaouette replied that he drew his conclusions either from observing judges’ sentencing habits or from remarks judges made off the record.

John Kane, senior judge on Colorado’s U.S. District Court, and Raymond Moore, federal public defender for Colorado and Wyoming, said the advisory guideline system is not creating the unwarranted sentencing disparities Gaouette alleges.  Colorado is not experiencing a case of “judges gone wild,” Moore told the panel.

Kane said all of Colorado’s federal judges follow the Supreme Court’s ruling that the guidelines must be considered first when formulating sentences. Regarding Gaouette’s remarks about judges refusing to follow the guidelines, Kane told Law Week Colorado, “I don’t believe that statement is true. It’s not accurate.”

November 2, 2009 in Booker and Fanfan Commentary, Booker in district courts, Who Sentences? | Permalink | Comments (3) | TrackBack

California Supreme Court to hear challenge to sex offender residency restrictions

As detailed in this local article, which is headlined "California Supreme Court to review Jessica's Law," an important challenge to California's sex offender residency restrictions is to be heard this week. Here are the basics:

The state Supreme Court on Tuesday is considering whether the residency restriction contained in Proposition 83 is so broad and intrusive that it violates the constitutional rights of registered sex offenders. Under the law, critics say, many sex offenders cannot find a place to live in urban areas across the state and are effectively forced into homelessness....

"The problem with this law," said attorney Ernest Galvan, who represents S.P and three other convicted sex offenders, "is it arbitrarily banishes people from home and family without any regard to whether the past offense in any way was even related to children."

Gov. Arnold Schwarzenegger, a strong backer of Proposition 83, is defending the law, along with the state Department of Corrections and Rehabilitation, which has largely been responsible for enforcement through its parole units. The administration's lawyer declined to comment but in court papers has defended the law's constitutionality. "The residency restriction is designed to protect children, not to punish the offender," state lawyers wrote in court papers.

Jessica's Law, however, has been openly questioned for its effectiveness, even in the law enforcement community, and also for its legality. More than 20 states have adopted similar provisions, with courts taking a mixed view of whether they pass legal muster.  Most courts, including two federal courts in California, have found the laws cannot be applied retroactively to sex offenders who committed their crimes and were released from prison before the laws were passed.

Earlier this year, California's Sex Offender Management Board, which includes many law enforcement officials, urged changes in Jessica's Law and found that the residency restrictions were counterproductive, particularly because of a surge in offenders declaring themselves transients, making it even harder to track their whereabouts.

At the local level, police departments find the law largely unworkable. San Jose police Sgt. Ed Pedreira, head of the city's sex offender unit, noted that Proposition 83 didn't even create a separate crime for violating the residency restriction.  "The intention of the law was good," Pedreira said.  "But what it leaves us with is no teeth in the law to where we can go out and actively enforce it." 

November 2, 2009 in Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

A SCOTUS week for criminal justice fans who like fed courts issues

As detailed in posts here and here from SCOTUSblog, the Supreme Court is not involved in many criminal justice issues that are likely to make huge headlines this week.  (The big SCOTUS headlines will be next week when the Court hears argument in the two juve LWOP cases of Graham and Sullivan.)  As these likes from SCOTUSblog spotlight, however, the Court is hearing argument in three cases this week that should be of great interesting to hard-core habeas and fed courts fans:

Mon., Nov. 2:

Beard v. Kindler (08-992) – enforcement of state procedural rule in federal habeas

Wed., Nov. 4:

Pottawattamie County v. McGhee (08-1065) – liability of prosecutors for arranging false testimony

Wood v. Allen (08-9156) – scope of federal court review of facts in state criminal proceeding

I suspect the Pottawattamie County will garner the most attention because it deals with the issue of wrongful convictions and prosecutorial misconduct.  But, as is often the reality, the case that gets the most media attention probably is not the one likely to have the most day-to-day impact on the operation of modern criminal justice systems.

November 2, 2009 in Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

A potent pitch for potent jury power after Apprendi

This new article by Jenny Carroll available via SSRN, which is titled ""Of Rebels, Rogues and Roustabouts: The Jury's Second Coming," makes a robust pitch for giving juries even more power in a post-Apprendi world.  Here is the article's abstract:

This article examines the role of the jury in a post-Apprendi justice system.  Apprendi and its progeny recognize the vital role the jury plays in establishing the legitimacy of criminal convictions and sentences.  I contend that the Apprendi line confirms the jury’s responsibility, as representatives of the community, to give the law meaning in their determination of criminal culpability.  In this, Apprendi seeks to restore the original role of the jury as the bridge between the law itself and the community the law seeks to regulate.  This restoration is incomplete, and the jury’s true significance cannot be realized, without a recognition of the jury’s original right to judge law as well as fact.  Only through the revitalization of this power to nullify can the jury assume its intended role and provide community sanction to the designation of criminal culpability.  I conclude that democracy, and indeed the underlying goals of the criminal justice system, are best served when criminal processes allow forums for dissenting perspectives and juries are allowed to assess both the legal and factual bases of guilt.

November 2, 2009 in Blakely Commentary and News, Procedure and Proof at Sentencing | Permalink | Comments (5) | TrackBack

"Why Care About Mass Incarceration?"

The title of this post is the title of this new book review available via SSRN by James Forman.  Here is the abstract:

The United States incarcerates more of its citizens than any other nation in the world.  Paul Butler’s Let’s Get Free: A Hip-Hip Theory of Justice makes an important contribution to the debate about the crime policies that have produced this result.  Butler began his career as a federal prosecutor who believed that the best way to serve Washington, D.C’s low-income African-American community was to punish its law-breakers.  His experiences — including being prosecuted for a crime himself — eventually led him to conclude that America incarcerates far too many nonviolent offenders, especially drug offenders. Let’s Get Free offers a set of reforms for reducing America’s reliance on prisons, and suggests that these changes are in the nation’s collective self-interest.  This Review contrasts Butler’s prudential arguments against mass incarceration with the moral arguments advanced by critics such as Glenn Loury, who emphasize the disproportionate numbers of poor people and racial minorities in our prison population.  Building on Butler’s approach, the Review identifies additional aspects of our criminal justice system — including aggressive policing of minority youth and criminogenic prison conditions — whose harms extend beyond the direct victims (young people and prisoners) and imperil us all.

November 2, 2009 in Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (2) | TrackBack

November 1, 2009

Noting the juve LWOP cases before SCOTUS across the pond

Thanks to How Appealing, I saw this new piece in The Times of London about the Graham and Sullivan cases to be heard by the Supreme Court nxt week. Here are snippets:

The Supreme Court’s rare decision to consider separate cases on the same issue reflects a slow and, many believe, long overdue reassessment of the uniquely American judicial policy of locking up teenagers and throwing away the key.

Joe Harris Sullivan was 13 when a Pensacola judge sentenced him to life without parole for raping a 72-year-old woman. The judge described Sullivan as “beyond help” and declared that he would “send him away for as long as I can”. He has already spent 20 years in jail.

Terrance Graham was 16 when he was arrested for armed burglary while on probation for a previous robbery.

At the time Florida was cracking down on repeat offenders and in 2005 a different judge declared Graham “incorrigible” and imposed the maximum sentence. More than 100 cases have been under the microscope since the Supreme Court ruled, after bitter internal debate in 2005, that juveniles should not be executed for murder.

Numerous legal and medical associations are supporting Sullivan and Graham on the grounds that the courts should not judge teenagers in the same way as they judge adults, just as governments recognise the difference by placing certain restrictions on juvenile drinking, voting and marrying....

The Supreme Court may decide that 13 is too young for a maximum sentence, but that 17 is not. For Sullivan and Graham, the ruling will in effect decide whether they die in jail.

November 1, 2009 in Graham and Sullivan Eighth Amendment cases | Permalink | Comments (1) | TrackBack

"Let juries determine sex offenders’ fate"

The title of this post is the headline of this interesting new editorial in the Boston Globe.  Here is how it begins and ends:

Middlesex District Attorney Gerard Leone wants state lawmakers to give juries more say in whether some sex offenders should be civilly committed after completing their criminal sentences.  It’s a reasonable proposal that could help gain broader community acceptance of verdicts in an explosive area of the law.

In Massachusetts, convicted sex offenders who complete their sentences get to choose whether a judge or jury will determine if they suffer from a mental abnormality that makes them a likely risk to reoffend.  Such a finding results in confinement and, equally important, treatment in Bridgewater State Hospital.  Leone wants the Legislature to change the law so that either the defendant or the prosecutor can demand a jury trial, as is the case in other civil matters.  Leone notes that juries in Middlesex County since 1999 have been almost twice as likely as judges to commit offenders for periods that can last from one day to life.  But juries are not acting reflexively, either.  In a quarter of the cases decided by jury, the convicted sex offender was found to be no longer sexually dangerous.

This is a challenging area in which judges or juries are not asked to determine what, if anything, someone did, but what they are likely to do in the future.  Experts argue over whether convicted sex criminals are more likely to reoffend than other criminals. But the law already recognizes the uniquely compulsive nature of sex crimes by allowing for civil commitments in limited cases.  It is only reasonable, therefore, to expect that the state should be on equal footing with the convicted sex offender when deciding how those cases should be heard initially.  That’s how it works already when convicted sex offenders get to appeal their commitment after one year — either the offender or the prosecutor can demand a jury trial....

The cases are often awash in conflicting medical testimony and legal fine points.  Witness that of David Flavell, a 40-year-old homeless man accused of trying to rape a woman last month in a bathroom stall at Massachusetts General Hospital. Flavell’s record is littered with sexual offenses ranging from indecent exposure and lewdness to an attempt to rape a woman outside an American Legion Post in Methuen.  Twice prosecutors had tried to convince judges to commit Flavell.  Twice they failed, based on conflicting medical reports and Flavell’s apparent willingness to engage in treatment.  Would a jury have seen it the same way?  It’s not certain.  But it is certain that the public would be more understanding of the decision to free him had it been rendered by a group of fellow citizens.

This is no small matter.  Community acceptance of verdicts is a pillar of the legal system, as any judge would attest.  And jurors have proven time and again that they are up to the task of fact-finding when deciding difficult cases.

As regular readers may know, I am a fan of greater jury involvement in the operation of various aspects of the criminal justice system.  I am intrigued to learn that juries already can and do play a role in Massachusetts' sex offenders civil commitment scheme, and I am pleased to see this editorial make an effective case for this kind of community involvement in tough criminal justice decisions.

November 1, 2009 in Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack

Mississippi Supreme Court looking into capital case delays

As detailed in this local article, which is headlined "Death row case delays flagged," the Mississippi Supreme Court is trying to figure out why a number of state capital cases are stuck in the post-conviction appeal pipeline.  Here is how the piece begins:

The Mississippi Supreme Court has asked trial judges why they have not ruled on post-conviction claims of nine death row inmates.  At least four of the cases involve claims of mental disability.

The Supreme Court issued the orders Thursday. The justices said they want to know what is taking so long on the cases and if they should force on the trial judges a timetable to render decisions. In a post-conviction petition, an inmate argues he has found new evidence — or a possible constitutional issue — that could persuade a court to order a new trial.

"The Court has undertaken a systematic review of all pending post-conviction death penalty cases and has sought information on the status of cases for which there appears to be a lack of activity," Chief Justice Bill Waller Jr. said.  He said the reviews will continue. "We will systematically review the status of death penalty post-conviction cases ... to assure that the fair and efficient administration of justice is being carried out.

This story provides a useful reminder of the fact that capital case delays can often be the result of actions by foot-dragging lower courts (or even prosecutors); they are not produced soley by just death row defendants and their defense attorneys (though I suspect many defendants do not much mind such delays).

November 1, 2009 in Death Penalty Reforms, Sentences Reconsidered | Permalink | Comments (2) | TrackBack

State judge calls for repeal of school-zone mandatory sentences

This local articlefrom Pennsylvania, which is headlined "Berks judge: End mandatory sentences involving drug sales in school zones," reports on a state judge complaining about the consequences of mandatory minimum sentencing terms for drug sales in school zones.  Here is how the article starts:

A Berks County judge called for immediate action from legislators to repeal a law allowing prosecutors to seek mandatory sentences for drug dealers selling within 1,000 feet of a school. "We cannot continue to fill up the prisons with nonviolent people who sell marijuana," Judge Linda K.M. Ludgate said. "We are in a state budget crisis. This law no longer makes sense."

Ludgate, head of criminal court, was on a Pennsylvania Commission on Sentencing advisory committee that concluded the law must be repealed. The panel's report was presented to the House Judiciary Committee.  "We cannot wait any longer for this law to be repealed," said Ludgate, also a member of the Pennsylvania Commission on Sentencing.  "It's no longer practical.  The legislators must decide whether they want to fill up prisons with murderers and rapists or people selling marijuana."

The numbers show Berks County prosecutors imposed mandatory sentences for 186 cases, or 63 percent, of the 294 mandatory-sentence cases in 2008.  The law requires judges to impose mandatory sentences when requested by prosecutors.  Prosecutors statewide obtained mandatory sentences in 314 drug-zone cases, or 18 percent of the 1,732 mandatory sentences handed down in 2008.  The report concluded the 1997 drug-free school zone is clogging up prisons, not shielding children from drugs.

"There is no relationship between the school zone and selling drugs to kids," said Mark Bergstrom, executive director of the Pennsylvania Commission. "If you are selling drugs to another person at 2 in the morning, and there are no kids out, you still face a mandatory sentence," he said. "This is not the intention of the law."

Recent related post:


November 1, 2009 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (0) | TrackBack