November 21, 2009
Couldn't (and shouldn't) prosecutors keep going after KSM until the "right" outcome is achieved?
Ever since AG Holder announced the decision to try Khalid Sheikh Mohammed in civilian court in New York City, there has been much hand-wringing in the media (and on this blog) about the possibility that KSM could be acquitted or avoid the death sentence that would seem justified in this case. But these professed fears fail to appreciate that various limits on double jeopardy would enable prosecutors many bites at the KSM apple, if needed.
First, the federal charges to be brought in New York may just focus on KSM's role in the bombing of the Twin Towers and the deaths that resulted in NYC. If shrewd, the feds can (and perhaps should) decide not to charge KSM with the the bombing of the Pentagon and the deaths that resulted in Virginia or with the crash of United flight 93 and the deaths that resulted in Pennsylvania. Then, if the NYC trial does not reach the "right" outcome, the feds can go after KSM again in federal court in Virginia for his role in the Pentagon deaths and again in federal court in Pennsylvania for his role in the flight 93 deaths.
Second, even if the feds decide to bring all of these charges for all of KSM's federal crimes in the planned NYC trials, state prosecutors in New York and Virginia and Pennsylvania can (and arguably should) bring state prosecutions against KSM. Of course, New York does not have a functional death penalty and Pennsylvania capital system is stuck in arrested development. But Virginia has a well-functioning death penalty system, and the citizens of that state have every reason to hope (and perhaps demand) that Virginia state prosecutors go after KSM if the results of the planned federal prosecutions do not seem satisfactory.
Usefully, another major modern terror attack on US soil provides recent precedent for potential dual prosecutions. After the feds only secured a life sentence for Terry Nichols for his role in the Oklahoma City bombing, Oklahoma state officials brought a state capital prosecution in order to seek to vindicate the state interests implicated by this act of mass murder. (Notably, state jurors were unable to decide to give Nichols a state death sentence, though the fact that Tim McVeigh was sentenced to death and executed for his role in the Oklahoma City bombing probably explains why even state jurors decided to go soft on Nichols.)
Some recent related posts:
- Obama Administration making key decisions on how to prosecute key terror suspects
- "Obama suggests 9/11 suspect will get death penalty"
- "The Real Price of Trying KSM: Defense lawyers will inevitably create bad law"
November 20, 2009
"What Explains Persistent Racial Disproportionality in Minnesota’s Prison and Jail Populations?"The question in the headline of this post is the title of this important new article by Professor Richard Frase. Here is the abstract:
Racial disparity in prison and jail populations, measured by the ratio of black to white per capita incarceration rates, varies substantially from state to state. To understand these variations, researchers must examine disparity at earlier stages of the criminal process and also racial differences in socioeconomic status that help explain disparity in cases entering the system. Researchers must adjust disparity ratios to correct for limitations in available data and in studies of prior incarceration rates. Minnesota has one of the highest black/white incarceration ratios. Disparities at the earliest measurable stages of Minnesota’s criminal process — arrest and felony conviction — are as great as the disparity in total custody (prison plus jail) populations. Disparities are substantially greater in prison sentences imposed and prison populations than at arrest and conviction. The primary reason is the heavy weight sentencing guidelines give to offenders’ prior conviction records. Highly disparate arrest rates appear to reflect unusually high rates of socioeconomic disparity between black and white residents.
NC Governor trying every possible means to avoid releasing certain prisonersAs detailed in this local article, which is headlined "Perdue: Lifers got no time credits; More questions arise in controversy over life-sentence inmates seeking to be released," the Governor of North Carolina is trying every possible means to avoid the release of certain lifers pursuant to a state supreme court ruling. Here are the particulars of an interesting controversy:
Gov. Bev Perdue's third take: Prison officials never doled out credits for good behavior to those sentenced to life in the 1970s. It's the latest position Perdue's administration has taken on the question of freedom for dozens of inmates convicted of murder, rape and robbery more than three decades ago. The inmates have argued in court that state law and prison policies entitle them to immediate release.
Perdue said Thursday that she and prison officials will be happy to release them in 2054, when the youngest and healthiest among them will be approaching 100.
Six weeks ago, the state's highest court affirmed that a law in place in the 1970s defined a life sentence as 80 years, but only for lifers sentenced between 1974 and 1978. The inmates argued that policies in place then entitled them to credit for good behavior and meant that they should go free.
The administration at first appeared to agree. Within days, prison officials made a list of inmates in that category and began preparing for their release. They called the inmates' mothers and fathers; they warned the families of the victims.
Perdue then said she would not stand for it. Days before prison officials promised to turn the first batch of inmates loose, Perdue forbade their release, saying prison officials never had the authority to award the credits. On Thursday, she offered a third stance: The Department of Correction had never awarded those credits and never meant to....
Advocates for the prisoners met the governor's newest tack with exasperation. "This is simply an extension of the state's political efforts to buttress the governor's sagging poll ratings by defying the rule of law," said Staples Hughes, the state appellate defender, whose office has represented some of the inmates. "We don't believe they will be able to substantiate their opinion in a court of law before impartial judges."
Republican legislators were also befuddled. "This entire controversy was caused by the governor's own department misunderstanding an appellate court decision, miscalculating sentence credits, and misinforming victims and the public," House Minority Leader Paul Stam of Wake County said in a statement Thursday. "Now, she claims credit for protecting us from her own error. This is really appalling and inexplicable."
Ultimately, the courts will be asked to settle the issue of credits. In the coming months, superior court judges across the state will be forced to settle the matter in cases filed by inmates sentenced to life in the 1970s.
Hughes said he has great faith that judges will free the inmates. "Every lawyer reading this can come but to one conclusion: The dates that DOC calculated immediately after (the court's ruling) are more or less accurate and this is nothing more than a continued defiance of the law," he said.
"The Real Price of Trying KSM: Defense lawyers will inevitably create bad law"The title of this post is the headline of this provocative commentary by David Feige at Slate. Here is how it starts and ends:
Sometime in the next few months, a small group of experienced criminal-defense lawyers will be assigned to what is likely to be the case of a lifetime: the defense of admitted 9/11 mastermind Khalid Sheikh Mohammed, or, to those enamored of sinister acronyms, KSM. Their work will not be easy, obviously. No jury on this continent is going to acquit their client, the government is certain to insist on the death penalty, and KSM will almost certainly try to put the government on trial. S o what's a team of hardworking criminal defense attorneys to do?
Everything they can, which, in this case, will mean a lot of futile maneuvering that will generate a tragic flood of bad law, rendering the defense team's valiant service not merely unsuccessful but actually hostile to the interests of all their other clients....
In an idealized view, our judicial system is insulated from the ribald passions of politics. In reality, those passions suffuse the criminal justice system, and no matter how compelling the case for suppressing evidence that would actually effect the trial might be, given the politics at play, there is no judge in the country who will seriously endanger the prosecution. Instead, with the defense motions duly denied, the case will proceed to trial, and then (as no jury in the country is going to acquit KSM) to conviction and a series of appeals. And that's where the ultimate effect of a vigorous defense of KSM gets really grim.
At each stage of the appellate process, a higher court will countenance the cowardly decisions made by the trial judge, ennobling them with the unfortunate force of precedent. The judicial refusal to consider KSM's years of quasi-legal military detention as a violation of his right to a speedy trial will erode that already crippled constitutional concept. The denial of the venue motion will raise the bar even higher for defendants looking to escape from damning pretrial publicity. Ever deferential to the trial court, the U.S. Court of Appeals for the Second Circuit will affirm dozens of decisions that redact and restrict the disclosure of secret documents, prompting the government to be ever more expansive in invoking claims of national security and emboldening other judges to withhold critical evidence from future defendants. Finally, the twisted logic required to disentangle KSM's initial torture from his subsequent "clean team" statements will provide a blueprint for the government, giving them the prize they've been after all this time — a legal way both to torture and to prosecute.
In the end, KSM will be convicted and America will declare the case a great victory for process, openness, and ordinary criminal procedure. Bringing KSM to trial in New York will still be far better than any of the available alternatives. But the toll his torture and imprisonment has already taken, and the price the bad law his defense will create will exact, will become part of the folly of our post-9/11 madness.
November 19, 2009
Interesting report on US Sentencing Commission regional hearing in Texas
As noted in this prior post, the US Sentencing Commission today started another of its regional public hearing, this one at the University of Texas School of Law. As detailed in this official agenda (where some of the written testimony is now linked), an interesting group of invited witnesses are testifying in this regional hearing. And this new AP report, which is headlined "Dallas DA promotes implementing 'smart justice'," details some of today's hearing highlights:
Implementing "smart justice" can help ease the criminal case load on prosecutors and keep society safe, Dallas County District Attorney Craig Watkins told a federal sentencing commission Thursday. That means using programs for youthful first-time offenders who can work toward getting their charges dismissed or fast-tracking of repeat low-level offenders into state jails, said Watkins, who is known for working to free wrongly convicted inmates.
Watkins said in his nearly three years in office, he has worked to implement such "smart justice." "At the end of the day the goal is public safety," he said, adding that it's smart use of taxpayer money to attempt to ensure that imprisoned inmates don't repeat their crimes when they get out of jail. "The goal is rehabilitation, as opposed to just punishment."...
The commission heard from several Texas experts. One commission member kept referring to the "Texas success story" of how the state has moved to more community-based corrections programs over the past two years. Adam Gelb, director of the Public Safety Performance Project at the Washington, D.C.-based Pew Center on the States, said Texas is a law-and-order and fiscally conservative state and that it is using methods besides imprisonment in sentencing convicts. Parts of Texas have a "very robust system of community corrections and alternatives," Gelb said....
Three federal judges also addressed the panel Thursday. Judge Robin Cauthron of Oklahoma said she is glad judges now have more discretion in varying from federal sentencing guidelines. That came about because of a U.S. Supreme Court ruling in recent years.
In presenting her recommendations, she said she believes federal sentencing guidelines are often too harsh for possession of child pornography when there's no indication that the defendant who viewed the pornography would actually molest a child.
Can the laboratory of the states help solve prison-crowding problems?
The question in the title of this post is inspired by this local article from Florida, which is headlined "Florida's prison problem could find a solution in Texas." Here is how the piece starts:
If only Florida's economy could grow like its prisons. The state has more than 100,000 prisoners for the first time in its history. It's expected to add 14,000 in the next five years, according to the Department of Corrections. Every 1,500 new inmates need a new prison. It costs $100 million to build one and $20 million a year to run. How can a state in a perpetual budget crisis pay for all that?
"It's currently unsustainable given our fiscal situation," said Florida Tax Watch general counsel Robert Weissert. Florida is staring at a Texas-sized problem. Fortunately, Texas might also have the solution.
Two years ago that state faced its own prison crisis: house 17,000 new inmates by 2012 at a cost of half a billion dollars. But Texas never built any new prisons. Instead, for half that amount, it revamped its criminal justice system, reduced its prison population and became a national model for reform.
"We hit the perfect storm at the right time," Texas legislator Jerry Madden said at the Collins Center for Public Policy's Justice Summit this week in Tampa. "We were able to say we can do this for less and, oh, by the way, our results will be better."
Sex offenders can now be blamed for ruining Christmas tradition
Sex offenders surely do not need any more bad press. But this new article from USA Today, which is headlined "Postal Service to block 'Dear Santa' letters to North Pole, Alaska," suggests that they might soon be blamed for ruining one of the best parts of Christmas:
The U.S. Postal Service, citing security and privacy concerns of children, will no longer forward "Dear Santa" letters to the Alaska town of North Pole, putting in jeopardy the town's 55-year-old volunteer letter-answering effort by the town. The concern is that names, addresses and other private information about small children could get into the wrong hands.
Postal Service officials note that a postal worker last year in Maryland recognized a volunteer in the agency's Operation Santa program as a registered sex offender, the Associated Press reports. The Postal Service now prohibits volunteers in such programs to have access to children's last names and addresses.
Mayor Doug Isaacson says the Postal Service is "running roughshod" over the city of North Pole, whose identity is tied to Christmas, the Fairbanks Daily News-Miner reports. "What grinch would conceive of something so sinister?" Isaacson tells the paper. He says businesses and civic organizations in the town of 2,200 gear up for the program every year "when we're able to really demonstrate the spirit of Christmas."
Republican Sen. Lisa Murkowski has called on the postmaster general to scrap the new policy.
Texas Gov Perry considering rare capital clemency recommendationThis new AP article, which is headlined "Texas governor to decide condemned killer's fate," reports on a notable new death penalty development in Texas:
The fate of a man facing execution Thursday evening for his role in a fatal robbery is in the hands of Gov. Rick Perry after the state parole board recommended that the death sentence be commuted to life in prison.
The Texas Board of Pardons and Paroles made the rare recommendation Wednesday for 34-year-old Robert Lee Thompson, who was not the triggerman in the fatal shooting of a Houston convenience store clerk. The shooter, Sammy Butler, was convicted and received life in prison.
Perry is not required to follow the recommendation of the board, whose members he appoints. "The governor has received the board's recommendation but has not made a decision," spokeswoman Allison Castle said Wednesday....
The parole board's 5-2 vote Wednesday came in response to a petition from McCann, who argued that the case was similar to that of Kenneth Foster, also convicted and sentenced to die under the law of parties.
Perry two years ago commuted Foster's sentence to life. Foster became only the second inmate since Texas resumed carrying out executions in 1982 who won a recommendation from the parole board as his execution loomed. In the first case, in 2004, Perry rejected the board's recommendation and mentally ill prisoner Kelsey Patterson was executed.
Perry's explanation for commuting Foster's sentence was that Foster and his co-defendant were tried together on capital murder charges for a slaying in San Antonio. In Thompson's case, he and Butler were tried separately for the shooting death of 29-year-old Mansoor Bhai Rahim Mohammed.
UPDATE: As detailed in this new AP piece, "Robert Lee Thompson was executed Thursday evening for his part in a fatal Houston store holdup after the Texas governor rejected a parole board's recommendation to spare him because he wasn't the gunman." As the piece also notes, "Thompson was the 23rd inmate executed this year in Texas and the second this week."
Russia's highest court essentially abolishes death penalty in that nationThis new Reuters article, which is headlined "Russian court extends moratorium on death penalty," explains why Russia is now pretty close to officially being another European nation without capital punishment. Here are the details:
Russia's Constitutional Court on Thursday effectively abolished the death penalty, extending indefinitely a 13-year-old moratorium on capital punishment. Russia has not executed a criminal since 1996, though a myriad of contradictory legal decisions have helped stoke a heated debate about whether to return the punishment for especially barbarous crimes.
"The Constitutional Court of the Russian Federation recognised that after January 1, 2010 use of the death penalty in Russia is not possible," the court, which is based in Russia's former capital St Petersburg, said in a statement.
Valery Zorkin, the head of the court, announced the decision after 17 judges deliberated for 45 minutes in the 18th Century building that used to house the Tsar's senate and synod. "I consider that this decision means the abolition of the death penalty," said court spokeswoman Anna Malysheva.
Kremlin chief Dmitry Medvedev, a former corporate lawyer, has pushed for the abolition of the death penalty which, despite the moratorium, is still part of Russia's criminal code. Recent polls have shown that between 65 and 74 percent of Russians favour resuming executions, carried out before the moratorium by a pistol shot to the back of the head....
Concerns about the return of the death penalty were raised because of a legal loophole under which the punishment cannot be applied until the introduction of jury trials in all regions. On Jan. 1, 2010, the volatile North Caucasus region of Chechnya will become Russia's last region where juries will replace traditional panels of judges, clearing the final formal obstacle to the death penalty's return.
But the Constitutional Court dismissed those concerns. "The introduction of jurors over the entire territory of the Russian Federation does not create the possibility to apply the death penalty," it said in its statement.
"Does the punishment fit the crime for child porn?"The question in the title of this post is the headline of this effective local article from Ohio. Here are excerpts, which also serve to spotlight how different sentences for this crime can often be depending upon whether a defendant is prosecuted in state or federal court:
Legal experts on all sides agree that downloading and watching child pornography is repugnant behavior. What they are at odds over is whether such defendants are as much of a threat to society as rapists or murderers. Nationwide, judges are questioning whether mandatory and recommended sentences for child porn are too harsh....
In 1991, a person with no criminal history who possessed violent child pornography images and movies and shared them with others would face a maximum of two years in prison in federal cases. Today, that same person could face more than 20 years behind bars....
[U]nder guidelines set by the U.S. Sentencing Commission — a federal agency that turns legislation into rules that guide judges on sentencing — child porn viewers often accumulate penalties, known as "enhancements" that add time for those who use the Internet and other circumstances that appear in nearly every child pornography case. This means the recommended sentences for viewers can easily be higher than those for predators.
"Simply stated, a defendant whose only crime is personal use typically receives the same sentence as a commercial peddler or someone who has molested a child," attorney Joseph W. Gardner stated in his sentencing memorandum on behalf of client Anthony Campana. Campana, 41, of Fairport Harbor was sentenced to 20 years in prison Oct. 30 by U.S. District Judge Peter C. Economus in Cleveland.
Campana, a truck driver with no prior criminal record, was previously convicted by a jury of possession and distribution of child pornography. Gardner requested Campana receive no more than six years in prison out of a possible life term. The defense attorney argued, "His crimes were perpetrated on a computer, not on children."...
Lake County Common Pleas Judge Vincent A. Culotta said watching child porn is far from a victimless crime — as real children are forced into the underground sex world to make the images. Yet Culotta said as a judge, his job is to compare child porn cases with other cases of similar nature.
Earlier this month, he was widely criticized on an online forum for sentencing an Eastlake man who swapped a large amount of child pornography to four years in prison — six years less than the prosecutor recommended. The judge explained in court that 10 years was too much time in the case of Paul Skala, a 62-year-old man with no prior criminal record. "You do realize that he never actually touched a child, right?" Culotta told Assistant Prosecutor Lisa Neroda.
He then gave recent examples in which the prosecutor's office recommended far lesser sentences for child porn cases in which the offender did have a prior criminal record. He also pointed out cases in which physical contact between the offender and victim occurred — but the recommendations were still less than what they had asked for in Skala's case. "There are a number of cases where people are being sentenced for actually harming children, and the recommendation does not even come close to 10 years," the judge said.
Experts say it has not been clearly established whether most viewers of child pornography are likely to commit acts of physical abuse. Meanwhile, an increasing number of judges are starting to rebel against sentencing recommendations and guidelines in certain situations.
A few related recent child porn sentencing posts:
- ABA Journal covers the controversies over federal child porn sentences
- Potent DOJ response to ABA Journal article about federal child porn sentencing
- Potent response to DOJ account of federal child porn sentencing
- Strong sentencing opinion noting disparities in federal child porn downloading cases
- More examples of sentencing uncertainty surrounding federal child porn cases
- Effective review of federal uptick in child-porn prosecutions
- Documenting the uptick in child porn prosecutions
November 18, 2009
New ABA Criminal Justice magazine issue on "Postconviction Practices"
Thanks to this post at StandDown, I discovered that the latest issue of the Criminal Justice magazine from the American Bar Association has a symposium focused on Postconviction Practices. Here are the main pieces from this valuable issue:
Priming Postconviction Representation by Andrew E. Taslitz
Postconviction Claims of Innocence by Myrna S. Raeder
Gubernatorial Clemency Powers: Justice or Mercy? by Kathleen “Cookie” Ridolfi and Seth Gordon
From Arrest to Reintegration: A Model for Mitigating Collateral Consequences of Criminal Proceedings by J. McGregor Smyth, Jr.
"Obama suggests 9/11 suspect will get death penalty"The title of this post is the headline of this new Reuters piece. Here is how the piece starts:
U.S. President Barack Obama suggested on Wednesday the self-professed mastermind of the Sept. 11, 2001, attacks would be convicted and put to death, but later said he was not trying to prejudge the trial.
I am bumming that President Obama did not also predict just when Khalid Sheikh Mohammed would be executed, especially since the administration of the federal death penalty remains in a virtual legal black hole since some scheduled federal executions were stayed way back in 2006 based on pre-Baze concerns about lethal injection protocols.
Some related posts:
- The notable federal-state disparity in carrying out executions
- What's up with federal executions?
- Why is the Bush Administration (secretly?) accepting a de facto moratorium on federal executions?
- Inequities and uncertainties in federal death penalty
- Is AG Mukasey going soft on the federal death penalty?
- Why the #$@! is AG Mukasey speaking out against execution for 9/11 plotters and suggesting US justice is sadist?
- What might a new administration mean for the federal death penalty?
District judge imposes sentence after defendant ordered to take (and fails) lie-detector testI just came across what strikes me as a very unusual federal sentencing story from the district court of Minnesota. I have bolded below the part of this local press article, which is headlined "Drug sales net prison term, and a lecture from federal judge," that really grabbed my attention:
U.S. District Judge James Rosenbaum was angry. The target of his wrath, standing before him Tuesday, was Mark Andrew Goetz, 41, of Minneapolis, who had pleaded guilty to selling drugs to an undercover informant.
But it wasn't a run-of-the-mill dope case. Goetz ran a business registered by the government to destroy outdated or unwanted pharmaceuticals. But instead of destroying some of the drugs, he sold them on the street.
Goetz was in the middle of sentencing Nov. 5 when Rosenbaum asked him if he'd only sold drugs illegally twice, as the government had alleged in its indictment. Goetz assured him those were the only times, but the judge didn't believe him, halted the proceedings and ordered Goetz to take a lie-detector test.
As it turned out, Goetz had lied and that visibly rankled Rosenbaum when the man was finally sentenced Tuesday in federal court in Minneapolis. "Why are you lying to me?" the judge asked, referring to the earlier hearing. Goetz replied that he'd been scared and thought he had to admit only to the two drug sales prosecutors had charged him with. "You're playing games," Rosenbaum thundered. "You're a convicted criminal. It's a little late for that."
Goetz told him there were three other instances of illegal drug sales and that was it. "I give you my word," he said. "How good is that?" the judge shot back. "It was worthless the other day. All I know for sure is you're a liar."
The judge sentenced Goetz to four years in prison, with supervised release for three years after that....
On July 28, Goetz agreed to a plea bargain. In return for pleading guilty to distributing alprazolam and oxycodone, the government would drop the indictment's other count.
At sentencing, DeGree asked Rosenbaum for a "significant variance" from federal sentencing guidelines, which called for a sentence ranging from 57 to 71 months. He noted that Goetz had started his own business "and ran (it) ethically for 16 years" and had lived an "exemplary" life until "some financial pressures" prompted him to sell drugs he had been entrusted to destroy....
Assistant U.S. Attorney Steve Schleicher opposed leniency, saying Goetz's money troubles boiled down to the fact that he "bought a house he couldn't afford."
I have never before heard of a judge stopping a sentencing hearing mid-stream and then ordering the defendant to take a lie-detector test! I suppose it is also noteworthy that the district judge here, even after being "angry" at the defendant for his lies during the sentencing proceedings still imposed a below-guideline sentence.
Seventh Circuit gives a little life to Heller challenge to prohibition on DV misdemeanant gun possession
Last year, as noted in this post, a federal district court rejected in US v. Skoien, a defendant's effort to use Heller to have dismissed his federal indictment on possessing three firearms after having been convicted of a misdemeanor crime of violence under § 922(g)(9). Today, in this important new opinion, a unanimous panel of the Seventh Circuit has said not so fast. Here is the start and end of the panel's effort:
A grand jury indicted Steven Skoien for possessing a firearm after having been convicted of a misdemeanor crime of domestic violence in violation of 18 U.S.C. § 922(g)(9). Skoien moved to dismiss the indictment, arguing that applying the federal statute to him violated his Second Amendment right to keep and bear arms as explained in District of Columbia v. Heller, 128 S. Ct. 2783 (2008). The district court denied the motion. Skoien pleaded guilty but reserved his right to appeal the district court’s denial of his motion to dismiss the indictment. H e now reiterates his Second Amendment challenge to § 922(g)(9)....
Accordingly, we cannot conclude on this record that the government has carried its burden of establishing a reasonable fit between the important objective of reducing domestic gun violence and § 922(g)(9)’s permanent disarmament of all domestic-violence misdemeanants. In fairness, because Heller did not establish a standard of review, the government did not know what its burden would be. Like the district court, it proceeded on the assumption that the highest standard of scrutiny applied and then relied almost entirely on conclusory reasoning by analogy from Heller’s reference to the “presumptive” constitutionality of felon-dispossession laws. That was a mistake, for the reasons we have explained. In any event, our discussion here of the appropriate standard of review should provide guidance for the proceedings on remand.
Before closing, we offer a few additional observations to help those proceedings along. Intermediate scrutiny tolerates laws that are somewhat overinclusive. See, e.g., Fox, 492 U.S. at 480; Anheuser-Busch, Inc. v. Schmoke, 101 F.3d 325, 327-28 (4th Cir. 1996) (recognizing that intermediate scrutiny in the commercial-speech context allows some latitude between the regulation and the governmental objective). How much is too much is hard to say; it depends on the scope and reach of the law and how much room it leaves for the exercise of the right. See Fox, 492 U.S. at 481 (noting “the difficulty of establishing with precision the point at which restrictions become more extensive than their objective requires”). We note that § 922(g)(9) is overinclusive on several fronts: The firearms prohibition exists indefinitely; it contains no exceptions nor any basis for potential restoration of gun rights; and it does not require an individualized finding of risk that the domestic-violence misdemeanant might use a gun in a future offense. On the other hand, the statutory definition of “misdemeanor crime of domestic violence” limits the applicability of § 922(g)(9)’s firearms disability to those who actually used or attempted to use physical force or threatened the use of a deadly weapon in a domestic disturbance. See 18 U.S.C. § 921(a)(33)(A)(ii). The statute thus targets a specific class of violent offender; only those who have already used or attempted to use force or have threatened the use of a deadly weapon against a domestic victim are banned from possessing firearms.
To summarize, we conclude that intermediate scrutiny applies to Skoien’s Second Amendment challenge to this § 922(g)(9) prosecution. The government has the burden of establishing a reasonable fit between its important interest in reducing domestic gun violence and the means chosen to advance that interest — § 922(g)(9)’s total disarmament of domestic-violence misdemeanants. Accordingly, we vacate Skoien’s conviction and remand for further proceedings consistent with this opinion. If the government successfully discharges its burden, the district court shall reinstate Skoien’s conviction.
Should criminal justice reform groups actively urge SCOTUS to overrule The Slaughterhouse Cases?
As detailed in this effective SCOTUSblog post, the petitioners in the McDonald case concerning whether the Second Amendment applies to the states have filed "a wide-ranging survey of the meaning and origins of the privileges clause of the Fourteenth Amendment [with] only seven pages of the 73-page brief are devoted to another provision of that Amendment: the Due Process Clause.... In a bold thrust, the attorneys for the challengers to Chicago’s strict handgun ban asked the Court to strike down ... the Slaughterhouse Cases in 1873 — the ruling that made the privileges clause a nullity."
At yesterday's OSU symposium, lots of the legal luminaries were buzzing about this brief and about whether the Supreme Court would really consider overuling The Slaughterhouse Cases. Orin Kerr has now shared some of his thoughts on this topic in posts over at Volokh, and other Conspirators are also buzzing about the McDonald brief. Here are links to some of these posts:
- Petitioner’s Brief in McDonald v. City of Chicago (The Second Amendment Incorporation Case), where Orin first notes that the brief is "not just arguing for a win: It’s arguing for a revolution."
- NRA brief in McDonald v. Chicago, where David Kopel says the effort is "a superb brief ... worthy of study by law students and anyone else who wants a great example of legal writing that is passionate and forceful, yet also sober and serious."
- How Many Votes To Overrule The Slaughterhouse Cases?, where Orin suggests that only Justice Thomas may be drawn to overuling The Slaughterhouse Cases.
- How I’d Approach the Privileges or Immunities Issue in McDonald, where David Bernstein urges "appeal[ing] not just to originalism, but to the conservatives’ long-term political self-interest, and affinity for the conservative political coalition that put them in power."
- Predicting McDonald, where Randy Barnett questions Orin's vote count prediction.
There is some much fodder for constitutional commentary in the McDonald brief, I am not sure where a con law guru would start to unpack all the great issues the brief raises. But I am sure what at least one sentencing guru would like to discuss: whether persons or groups seriously interested in criminal justice reform ought to actively support the effort in McDonald to overrule The Slaughterhouse Cases.
I ask this question for two reasons: (1) I tend to view any constitutional development that stirs the pot as good for those interested in criminal justice reform, so my first instinct is that reform groups ought to actively support overruling The Slaughterhouse Cases, and (2) I think it is safe to assume that the dissenters in Heller (aka the supposed liberals) might well be drawn toward overruling The Slaughterhouse Cases if and only if some traditionally liberal advocacy groups seriously support the effort to do so.
Put another way, the McDonald brief urging the Supreme Court to overrule The Slaughterhouse Cases provides more evidence for my view that the awakening of the Second Amendment through the Heller ruling has started to take us through the modern constitutional looking glass. I have generally been disappointed that many traditional criminal justice reform groups have failed to actively embrace the potential of Heller, and now I am wondering — really hoping — that the new McDonald brief will spotlight Heller's profound potential.
A few related new and old Second Amendment posts:
- What is the best argument that Heller should only impact the feds? Will it get any votes?
- What state and local issues will be litigated the most if (when?) Heller is incorporated?
- State AGs and the Second Amendment incorporation debate
- Should (and will) SCOTUS discuss standards of review for the Second Amendment when deciding incorporation?
- "In U.S., Record-Low Support for Stricter Gun Laws"
- What if no lower court judges participate in a "Second Amendment Revolution"?
- Has there been a single pro-gun-rights rulings in lower courts since Heller?
- "Does the Second Amendment Bind the States?"
- What might 2009 have in store for . . . Second Amendment jurisprudence?
Two notable new speeches from AG Eric HolderThis week on the DOJ website one can find the text of two speeches given by Attorney General Eric Holder that criminal justice and sentencing fans ought to check out. The more recent one, which was given yesterday at the Financial Fraud Enforcement Task Force Press Conference, includes this notable tough talk:
I am pleased today to announce the launch of an interagency Financial Fraud Enforcement Task Force to combat financial crime. The Task Force is designed to strengthen our collective efforts -- in conjunction with our federal, state, and local partners -- to investigate and prosecute significant financial crimes relating to the current financial crisis; to recover ill-gotten gains; and to ensure just and effective punishment for those who perpetrate financial crimes....
In the tough economic environment we face today, one of this Administration’s most important missions is to draw upon all of the resources of the federal government to fight financial fraud in all of its forms. The Financial Fraud Enforcement Task Force will wage an aggressive, coordinated, and proactive effort to investigate and prosecute financial crimes. We will marshal the criminal and civil enforcement resources of the executive branch to investigate and prosecute financial fraud cases; recover stolen funds for victims; address discrimination in lending and financial markets; and enhance coordination and cooperation among federal, state, local, tribal, and territorial authorities responsible for investigating and prosecuting significant financial crimes and violations.
This Task Force’s mission is not just to hold accountable those who helped bring about the last financial meltdown, but to prevent another meltdown from happening. By punishing criminals for their actions, we will send a strong message to anyone looking to profit from the misfortune of others: We will investigate you, we will prosecute you, and we will incarcerate you. We will be relentless in our investigation of corporate and financial wrongdoing, and will not hesitate to bring charges, where appropriate, for criminal misconduct on the part of businesses and business executives.
Striking a very different tone in a very different context, AG Holder spoke Monday at the Brennan Center for Justice Legacy Awards Dinner. His remarks there focused on the importance of effective defense counsel, and includes these notable comments:
A recent report commissioned by a joint resolution of the Michigan state legislature, for example, found counties in the state where defendants are charged and plead guilty to crimes that carry jail time without ever speaking to a lawyer. In other parts of the country, according to another report, defendants may sit in jail cells for weeks, even months, waiting for a lawyer. In one example, a 50-year-old woman charged with shoplifting spent 11 months in jail waiting for a lawyer to be appointed. Another woman charged with stealing $200 from a slot machine spent 8 months in jail before receiving a lawyer.
Even when counsel is appointed the appointment is oftentimes not meaningful, not truly effective. The most recent comprehensive national study on the state of indigent defense documented a Missouri county where the public defenders office started to refuse cases after its lawyers began averaging 395 cases a year, causing the State Public Defender Director to acknowledge publicly that with caseloads that high, mistakes were being made....
For me, this is an issue of personal importance and national conscience. As a judge, I saw firsthand how ill-equipped and unprepared defense counsel distort the entire system.
Ours is an adversarial system of justice — it requires lawyers on both sides who effectively represent their client’s interests, whether it’s the government or the accused. When defense counsel are handicapped by lack of training, time, and resources — or when they’re just not there when they should be — we rightfully begin to doubt the process and we start to question the results. We start to wonder: Is justice being done? Is justice being served?...
So, what is to be done? In order to fulfill the promises of Gideon and Gault, we need the engagement of partners at the federal, state, and local levels, both within and outside of government. Much good work has already gone into developing model standards for public defense systems, including the American Bar Association’s Ten Principles of a Public Defense Delivery System and the National Juvenile Defender Center’s Ten Core Principles for Providing Quality Delinquency Representation Through Public Defense Delivery Systems. I am grateful for organizations like the Brennan Center that are on the front lines of this effort, whether it is through education or litigation.
I want to emphasize education because I believe that if more Americans knew more about how some of their fellow citizens experience the criminal justice system, they would be shocked and angered....
At the Department of Justice, I have convened an internal working group to help me identify ways we can do our part in this effort. I’ve instructed them to leave no stone unturned in identifying potential funding sources, legislative initiatives, and other ways we can work with our state and local partners to establish effective public defense systems. I have personally met with leaders from the indigent defense community to learn more about the problem and to get their advice and ideas on ways the Department can help. And our Office of Justice Programs is currently planning a national indigent defense conference in February that will bring together public defenders from all 50 states.
There is much worthy of commentary in both of these speeches, but I am especially intrigued by AG Holder's assertion that he believes "that if more Americans knew more about how some of their fellow citizens experience the criminal justice system, they would be shocked and angered." I share that belief on a few issues — e.g., the use of acquitted conduct to increase sentences, the pressure innocent defendants may feel to plea guilty for fear of a huge trial penalty, the imposition of long sentences for non-violent crimes by some first offenders. But, with respect to repeat and violent offenders, I question whether many members of the public would truly be "shocked and angered" about how these defendants experience the criminal justice system.
"Does death for 9/11 plotters offend federalism?"
The question in ths title of this post is the headline of this post from Josh Gerstein in his "Under the Radar" blog at Politico.com. Here are excerpts from an interesting piece:
The attorney general's call for capital punishment [for certain terrorist defendants] was criticized in some quarters for running the risk that the alleged Al Qaeda men could be seen as martyrs for their cause. But missing from the commentary on Holder’s announcement was the observation that, by seeking the death penalty in a state which currently does not have it, the attorney general is treading into territory that triggered an outcry from liberal activists against the Bush administration not so long ago.
When Attorney General John Ashcroft ordered a federal death penalty prosecution in Vermont in 2002, there were howls of outrage that Ashcroft was abusing federal authority by essentially forcing the death penalty on a state that didn't have one in local law. "We've rejected the death penalty as part of our criminal justice system,'' Burlington Mayor Peter Clavelle said at the time. "Many of us resent the imposition of a death penalty as an option in this state by John Ashcroft and his friends from Washington. I think it's an affront to state's rights and is not consistent with the values of a majority of Vermonters.''
Many New Yorkers have welcomed Holder’s decision to seek death in connection with the 9/11 attacks, which killed nearly 3000 people. However, strictly as a factual matter, it is the case that the Justice Department will be seeking capital punishment in a state which presently doesn’t have that option in its courts. “If New York itself was to pursue the case, they wouldn’t and couldn’t use the death penalty,” said Richard Dieter, a death penalty critic at the Death Penalty Information Center said in an interview. “That’s how the state law has come down now.”...Dieter pointed to a couple of distinctions between Ashcroft’s actions and Holder’s decision. Critics complained that Ashcroft was pursuing the death penalty over the objection of local U.S. attorneys and in cases where there was no particular federal interest. In the 9/11 case, prosecutors appear to be on board and the national quality of the crimes is evident. “This is not a carjacking that occurred in Vermont. It is more a national terrorism kind of crime that people would probably feel doesn’t raise quite the same federalism issues as prosecuting a local crime would,” Dieter said....
When I asked Holder last month how he might take a different tack than the Bush administration in considering death penalty cases, the top lawman and former U.S. Attorney for Washington, D.C. stressed his respect for local federal prosecutors. “I will say that based on my experience having been a United States Attorney and given the respect that I have for the career people who handle these kinds of matters, the recommendation that I get from the field carries a great deal of weight with me,” the attorney general said.
As regular readers may recall, I tend to be a big fan of criminal justice federalism. But, when it comes to the matter of the punishment of death in major criminal cases that generate national attention, I think the nation as a whole and the federal government in particular has every reason and every right to take over a prosecution and subject it to the special (and often better) federal capital procedures. Indeed, as suggested in some prior posts on this topic (which are linked below), I seriously believe that persons seriously interested in a serious, sound, sober and sensible system of capital punishment ought to be drawn to the idea that all modern capital prosecution ought now to be exclusively federal matters.
Some related (and mostly dated) posts:
- Feds decide to seek death in local(?) killing in state without the death penalty
- "Death penalty decisions loom for Barack Obama"
- More support for an exclusively federal death penalty
- A poster child for the (federal) death penalty?
- The federal law gap in the NJ death penalty report
- The federal death penalty in America's paradise
- Ashcroft's death penalty "legacy"
- Expansion of the federal death penalty?
New York about to get tougher on drunk driversAs regular readers know, one modern "get tough" sentencing movement that I am happy and eager to support concerns efforts to enhance and refine responses to the pervasive and harmful crime of drunk driving. Thus, I was pleased to see this report in today's New York Times, which is headlined "New York Is Set for Strict Stand on D.W.I. Cases." Here are the basics:
New York State would make it a felony to drive while intoxicated with a child in the vehicle and would require first-time convicted drunken drivers to buy a device that prevents them from driving their cars if they have been drinking, under a bill passed by the State Assembly on Tuesday.
The measure, which would significantly toughen penalties for drunken driving, could be passed by the Senate and sent to the governor this week. It would make New York the second state, after Arizona, in which drivers under the influence of alcohol could be charged with a felony if they have children as passengers.
New York would also be one of only a dozen states that force drivers convicted for the first time of drunken driving to install what is called an interlock device, which measures the alcohol content of a driver’s breath and prevents the engine from starting if it detects too high a level.
The article also spotlights that, while there has long been evidence of the severe harms that regularly result from drug driving, it took a few high-profile cases to prompt what seems like overdue legislative action:
The push for harsher drunken-driving penalties follows two recent crashes in New York in which children were killed while traveling with adults who had been drinking....
Courts in New York convicted 37,695 people for drunken driving last year, and across the country people who drink and drive kill about 13,000 people a year....
A recent study by the Insurance Institute for Highway Safety, a nonprofit group financed by auto insurers, found that repeat drunken driving offenses dropped 65 percent among those with interlock devices. Another study, by the National Highway Transportation Safety Administration, estimated that if the devices were more widely installed, they would save up to 750 lives a year....
Automakers and the federal government are now examining ways to make technology like ignition interlocks more widely available. A panel made up of car manufacturers and government officials has begun looking into ways that all vehicles might include systems that prevent impaired drivers from getting behind the wheel. For example, they have studied sensors that could be installed in steering wheels that detect alcohol through the skin and devices that automatically measure alcohol in the ambient air of a vehicle’s interior.
“Interlocks are very effective in preventing recidivism, but the problem is they’re used in a tiny proportion of cases,” said Russ Rader, a spokesman for the Insurance Institute for Highway Safety. Figures collected by institute showed that in 2007, the most recent year data was available, 146,000 ignition interlocks were in use in the United States, even though 1.4 million people were convicted of drunken driving.
Last month, Gov. Arnold Schwarzenegger of California signed into law a pilot program making interlock devices mandatory for first-time drunken drivers in four counties, including Los Angeles and Sacramento. Interlocks are in use in some form in 47 states, but most require them only for those who were found driving with an extremely high blood alcohol content or leave it to judges to decide whether they are used.
Some related posts on sentencing drunk drivers:
- Effective commentary complaining about undue leniency for 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"
The special criminal justice and sentencing challenges of domestic violenceMy local paper, the Columbus Dispatch, has run a terrific series of articles on the social problems of domestic violence. Today's piece in the series, which is headlined "Time for change: Lawmakers call for holistic approach to domestic-violence laws; other states offer solutions," thoughtfully covers legal issues that ought to be of special interest to sentencing fans. Here are snippets:
No state has found the perfect mix of laws and policies to adequately punish abusers and protect victims of domestic violence. But there are models of success -- innovative approaches to addressing a long-standing societal issue.
Those most involved with the problem in Ohio say the state's laws, while not the worst, pale in comparison to those in some other states. For example, at least nine states say that domestic violence can be a felony charge on the first offense. Ohio does not allow for a felony on the first offense.
Ohio House Speaker Armond Budish, D-Beachwood, said he would be open to taking a holistic approach to fixing flaws in state law regarding domestic violence. "We need to do more to protect victims of domestic violence," Budish said. "We should be looking at whether there are adequate penalties for repeat offenders. Clearly, there comes a time when a repeat offender needs to be punished more severely than a slap on the wrist." Budish said he also supports two existing bills in the Ohio legislature that would provide protections for teenagers and other victims.
The best way to break the cycle, experts say, is an overall approach in which the needs of victims, children, police, prosecutors, judges, batterers, advocates and society as a whole are met. "You have to take domestic violence seriously as a crime," said Abigail Wexner, founder of the Columbus Coalition Against Family Violence. "People can't get away with beating or threatening a stranger; they shouldn't be able to get away with doing it to someone in their home."
This idea of a "holistic approach to domestic-violence laws" gets me thinking about the restorative justice movement in the arena of punishment theory. Indeed, I think the restorative justice movement perhaps ought to give special attention and concern to the pervasive problems of domestic violence, which seems to be an important area where traditional crime and punishment approaches have often been largely ineffective.
November 17, 2009
Second Circuit issues huge opinion (with sentencing stuff) in Lynne Stewart case
In the words of one of my co-panelists at today's OSU Scalia symposium, "Holy Buckeyes, Batman!": while I was thinking had about originalism and the jury, the Second Circuit handed down a massive opinion in the high-profile Lynne Stewart case. That opinion, which runs almost 200 pages including the separate opinions, can be accessed at this link.
I likely will not have time to consume this massive effort (which seems to have lots of sentencing parts) until probably late tomorrow. But, in the meantime, perhaps Supremecy Clause and other commentors of note will have something interesting to say about a lawyer told to go directly to jail.