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December 1, 2009

Child porn on murder victim's computer helps murderer reverse death sentence

A new ruling today from the Supreme Court of Missouri provides yet another bit of evidence concerning the profound significance and potential impact of downloading child porn.  This local news story, headlined "Death sentence overturned in 2002 Cape Girardeau murder," reports the basics:

The Missouri Supreme Court on Tuesday reversed the death sentence for Mark A. Gill, who was convicted of the 2002 murder of Ralph Lape of Cape Girardeau County.

In a unanimous ruling, the court found that Gill's trial attorneys failed to find out about and use information about child pornography on Lape's home computer to rebut testimony that Lape had a good character.  The ruling sends Gill's case back to the trial court, which could bring in a new jury to decide whether to re-impose the death penalty or sentence Gill to life in prison without possibility of parole.

Gill, 39, has been on death row since April 2004, when a New Madrid County jury found him guilty of abducting Lappe from his home, binding him with plastic ties and duct tape and murdering him in a corn field near Portageville, Mo.  A second man, Justin Brown, is serving life in prison without parole for his role in the crime.

The full opinion of the Missouri Supreme Court is available at this link, and here is a section from the start of the opinion:

Among the issues in this case is whether Gill’s counsel provided ineffective assistance of counsel by failing to review carefully the directory of the victim’s computer, which contained child pornography, or by not interviewing or deposing the investigator who prepared the directory.

Although a victim’s character is not typically an issue, when the State introduced evidence of the victim’s good character in the penalty phase, Gill’s counsel should have rebutted the State’s good character evidence with the sexually explicit contents of the victim’s computer. Because his counsel failed to discover the sexually explicit contents of the victim’s computer, Gill’s counsel were ineffective.  This Court affirms the denial of the Rule 29.15 motion as to the guilt phase of the trial, but reverses the denial of the motion as to the penalty phase insofar as Gill had ineffective assistance of counsel for failing to investigate the victim’s computer.  The case is remanded.

December 1, 2009 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (17) | TrackBack

"Symposium: Confronting the Costs of Incarceration"

The title of this post is the headliner of the latest issue of the Harvard Law & Policy Review.  Here are the contents (with links) of this very interesting symposium:

December 1, 2009 in Recommended reading, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

Tiger Woods gets citation, but will not face criminal charges

This updated report from Bloomberg news provides a criminal-justice update on the Tiger Woods car crash brouhaha:

Tiger Woods will be cited for careless driving in the one-car crash last week outside his home and faces no further charges, the Florida Highway Patrol said. Patrol spokeswoman Kim Montes said at a televised news conference that Woods, the world’s No. 1-ranked golfer, would be fined $164 and that there was insufficient evidence to get medical records in the case.  He was treated for facial cuts after the crash.

After issuing the citation to Woods, who will also receive four points on his driving record, the investigation will be closed and police will not pursue criminal charges against the golfer or his wife, Elin, police said.

There is no “testimony or other evidence to support additional charges of any kind,” police said in a statement. “We cannot speak to the existence of any blood evidence, nor are there claims of domestic violence by any individual.”

Though so much has and still will be said about this matter, I will focus on the fact that $164 to Tiger Woods is probably the equivalent of less than a penny to the average American. 

Tiger should consider himself lucky that his offense did not take place in the part of the world where his wife comes from, where a day-fine system is often used for punishing traffic offenses.  As noted in this prior post, Norway earlier this year imposed a fine of over $100,000 on a wealthy man for drunk driving.  Given that Tiger makes roughly $10 million each month, even a day-fine of only one day would mean a fine of over $300,000 rather than just a paltry $164. 

December 1, 2009 in Celebrity sentencings, Criminal Sentences Alternatives, Sentencing around the world | Permalink | Comments (9) | TrackBack

Mike Huckabee brings up race and class when defending clemency for Clemmons

A helpful reader pointed me to this fascinating new piece in Politicoin which Mike Huckabee is quoted defending his clemency decision regarding (now dead) suspected cop killer Maurice Clemmons.  Here are some lengthy excerpts:

Under fire for commuting the sentence of suspected cop-killer Maurice Clemmons, former Arkansas Gov. Mike Huckabee on Tuesday called some of the criticisms “disgusting” and suggested they were attempts to score political points.  “It really does show how sick our society has become that people are more concerned about a campaign three years from now than those grieving families in Washington,” Huckabee said during an interview on Joe Scarborough’s radio show. “It is disgusting, but people use anything as a political weapon.”

Huckabee granted Clemmons, a suspect in the killings of four police officers in Washington state over the weekend, clemency in 2001.  He had served 11 years in prison after being sentenced at the age of 18 to 60 years in prison for burglary and theft and was set to serve the 60 years, in addition to the 48 years he was already serving on five felony counts....

Huckabee has been thrashed in the right-wing blogosphere by leading online conservative voices who have criticized his commutation of Clemmons’ sentence.  In addition, Minnesota GOP Gov. Tim Pawlenty — one of Huckabee’s potential challengers for the GOP presidential nomination in 2012 — said Tuesday that he would not have granted Clemmons clemency if he had been in Huckabee’s position.

“I don't think I've ever voted for clemency,” Pawlenty told conservative radio host Laura Ingraham. “We’ve given out pardons for things after everybody has served out their term, but again, usually for more minor offenses.  But clemency?  Certainly not.  Commutation of sentence?  Certainly not.

Huckabee defended his choice to grant the Arkansas felon clemency by insisting that Clemmons original sentence went too far.  “If he were a white kid from an upper middle class family he would have gotten a lawyer and some counseling,” Huckabee said.  “But because he was a young black kid he got 108 years.”  Huckabee said the sentence was “far disproportionate from any other punishment in Arkansas at the time for a similar crime.”

“It’s a lot easier to be a pundit or a commentator or a blogger than to govern the state and have to make tough decisions,” he said. “People are talking about this from a political standpoint, but what they need to be asking is how did the system break down?”

I am pleased and impressed that Huckabee has brought up the issues of race and class concerning extremely long sentences for juvenile offenders.  Serious students of the criminal justice system know that race and class issues often simmer beneath the surface of many hot-button issues, and it is especially heartening to see a leading GOP figure bring these difficult issues to the surface.

Some recent related posts:

December 1, 2009 in Clemency and Pardons, Race, Class, and Gender, Who Sentences? | Permalink | Comments (26) | TrackBack

SL&P honored again by ABA Journal

ABAJ I am pleased and honored to report that this blog has once again been selected as one of the ABA Journal's Blawg 100. The ABAJ's annual list of the best of the blawgosphere appears in the December issue of the magazine, and is available online at this link.  Here is how the ABA Journal kindly describes this blog: "A perennial favorite, Sentencing Law and Policy doesn’t disappoint. Ohio State law prof Douglas Berman offers daily sophisticated reviews of cases in the news and headed for the spotlight."

In addition to thanking the ABA Journal for giving me this honor now for the third year in a row, I also want to thanks all the readers and commentors who keep helping me find the energy (and often the insights) to keep this blog going.  I doubt I would have expected to still be blogging so much five years after Blakely and Booker first made this space so exciting; it is quite clear to me that I now maintain this blog largely because I greatly enjoy the engagement, and learn so much, from readers and commentators concerning the array of topics I discuss. 

December 1, 2009 in On blogging | Permalink | Comments (8) | TrackBack

Ohio gives tour of "death house" as new lethal injection protocol is put in place

As detailed in this local article, which is headlined "State gives tour of 'Death House'," official in Ohio are rolling out the red carpet for folks interested in seeing where and how it will be pioneering a new approach to executions:

State corrections officials gave a behind-the-walls tour of Ohio's Death House on Monday for the third time since executions resumed in 1999. Among those on the tour: Reporters and camera crews from 14 news outlets including West Virginia and the Agence France-Presse

The tour at Southern Ohio Correctional Facility coincided with the state's new plan to use one lethal drug — five grams of thiopental sodium, a powerful anesthetic used during surgery — instead of three different drugs, the most common execution process used nationwide.  Ohio also ditched its requirement to have two intravenous lines hooked to an inmate at once.  One working IV line will now suffice.

Also, Ohio has "a backup plan" in case intravenous drugs don't work — jabbing the thigh or hip muscle of the condemned killer with a shot of midazolam and hydromorphone.  If the inmate is still breathing after five minutes, one authorized executioner can jab him again.  A third time if five more minutes passes and he's still alive.

Ohio becomes the first place internationally to execute someone with a one-drug process of thiopental sodium next week when Kenneth Biros, 51, of Trumbull County is set to die by lethal injection.

Julie Walburn, spokeswoman for the state Department of Rehabilitation and Correction, said Ohio has one execution scheduled each month through June.  The state has executed 32 inmates since capital punishment resumed in 1999.  Walburn said that if a convicted killer is found to not have veins viable for lethal injection, the state will just go to its backup plan and inject him to death with the shot.  The state fully expects litigation over the new process, Walburn said.

As this article hints and as I have noted in this prior post, it is unclear whether the litigation over Ohio's new protocol will get in the way of Ohio's apparent eagerness to go forward with Kenneth Biros's execution next week.

Some related posts on Ohio lethal injection issues:

December 1, 2009 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (3) | TrackBack

"Legalizing Drug Criminal Law"

The title of this post is the title of this interesting new piece from Markus Dubber.  Here is the abstract:

This paper investigates American drug criminal law, or rather the American drug penal regime, from the perspectives of two fundamental modes of governance, police and law.  In particular, it inquires into the possibility of drug criminal law as law, rather than as a police action designed to identify and eliminate threats to public welfare.  The topic of this paper thus is not “the legalization of drugs,” whatever that might mean, but the legalization of the drug penal regime.  It is concerned with the possibility of legitimate state action that brings the law power of the state in general, and its penal law power in particular, to bear on persons on account of their interaction, relationship, or association with drugs.

December 1, 2009 in Drug Offense Sentencing, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

Prior military service as a sentencing mitigator gets a big boost from SCOTUS

Long-time readers know that I have long discussed the notion that prior honorable military service could and perhaps should serve as a reason to reduce a sentence (see, for example, prior posts here and here).  As Lyle Denniston notes here at SCOTUSblog and as a bunch of major media articles also spotlight, the Supreme Court's summary reversal via this per curiam opinion in Porter v. McCollum (08-10537) gives considerable conceptual and constitutional heft to the idea of military service as a mitigating factor at sentence.  This passage from Porter in particular likely can and should be used by many veterans in many sentencing proceedings:

Our Nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines as Porter did.  Moreover, the relevance of Porter’s extensive combat experience is not only that he served honorably under extreme hardship and gruesome conditions, but also that the jury might find mitigating the intense stress and mental and emotional toll that combat took on Porter.

Because Porter is a death penalty case, some will surely wish to contend that its discussion of "according leniency to veterans" ought only to be consequential in capital cases.  But I do not think the Supreme Court wants this pro-veteran sympathy to be confined only to capital cases, and I am certain that at least some veterans facing sentences other than death will be eager to cite Porter in many other settings.

December 1, 2009 in Death Penalty Reforms, Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (12) | TrackBack

November 30, 2009

More details on the Huckabee clemency grant that aided suspected cop killer

PS Ruckman here at Pardon Power and CNN in this new story are adding details to what we now know about the form of clemency granted to Maurice Clemmons, the chief suspect in the fatal shooting of four police officers in Washington state.  Here is some of the new CNN coverage:

Nearly 10 years ago, Maurice Clemmons pledged to make a fresh start. "I come from a very good Christian family and I was raised much better than my actions speak," Clemmons said in a clemency application brief to then-Arkansas Gov. Mike Huckabee in 2000.  "I'm still ashamed to this day for the shame my stupid involvement in these crimes brought upon my family's name."

Clemmons was 27.  He'd spent the past 11 years in an Arkansas prison, convicted of offenses including robbery, burglary, theft and taking a gun to school.  He was facing a 95-year sentence.

A decade later, Clemmons is the subject of an intense manhunt in Washington state, suspected in the deaths of four Lakewood, Washington, police officers who were shot to death Sunday as they met in a coffee shop before starting their shifts.  Authorities have said Clemmons is believed to have entered the Forza Coffee Company and opened fire on the officers with no warning....

In 2000, Clemmons told Huckabee that the crimes occurred when he was 16, had just moved to Arkansas from Seattle and had fallen in with the wrong crowd.  "Where once stood a young 16-year-old misguided fool ... now stands a 27-year-old man, who has learned through the 'school of hard knocks' to appreciate and respect the rights of others," his petition to Huckabee said.

Huckabee commuted Clemmons' sentence in 2000, citing his young age at the time of sentencing, making him eligible for parole.  It was granted in July 2000, after he told Arkansas parole officials that he "just wants the opportunity" and "is not the same person he was when he came in," the documents said....

In his 2000 brief to Huckabee, Clemmons said his mother had died while he had been in prison, providing him with further motivation to turn his life around. "I have never done anything good for God, but I've prayed for him to grant me in his compassion the grace to make a start," he said. "Now, I'm humbly appealing to you for a brand new start."

But after receiving a second chance, Clemmons was apparently unable to stay on the right side of the law, according to documents and authorities in Arkansas and Washington. Arkansas parole board documents show that he was back in prison by September 2001.  The Arkansas Democrat-Gazette reported that he was arrested for aggravated robbery and theft and taken back to prison on a parole violation.  The paper said he was not served with the new arrest warrants for the robbery and theft charges until he was paroled three years later in 2004.  His attorney argued that the charges should be dismissed because too much time had passed, and prosecutors complied.

Huckabee went on to become a 2008 Republican presidential candidate and has not ruled out a second try for the White House in 2012.  In a statement Sunday night, his office said Clemmons' commutation was based on the recommendation of the parole board that determined that he met the conditions for early release.

"He was arrested later for parole violation and taken back to prison to serve his full term, but prosecutors dropped the charges that would have held him," the statement said.  "Should he be found responsible for this horrible tragedy, it will be the result of a series of failures in the criminal justice system in both Arkansas and Washington state."

Clemmons is believed to have moved to Washington in 2004.  The Pierce County Sheriff's Department said in a statement that he was recently charged in the assault of a police officer and rape of a child.  County court records posted online show that he spent several months in jail and was released on $150,000 bail Tuesday, days before the shootings.

As these details highlight, this high-profile story could not only impact public and political opinions on clemency grants, but also public and judicial opinions on whether violent juvenile offenders generally should or even constitutionally must be given the opportunity for parole when sentenced to very long prison terms.  Though I doubt the Justices' views in the juve LWOP cases of Graham and Sullivan will be unduly influenced by a single tragic offense, I think many juve offenders who have turned their lives around while in prison will be cursing Maurice Clemmons for some time to come.

November 30, 2009 in Clemency and Pardons, Graham and Sullivan Eighth Amendment cases, Prisons and prisoners, Who Sentences? | Permalink | Comments (33) | TrackBack

Significant Ninth Circuit ruling on guideline loss calculations in fraud sentencings

Today a Ninth Circuit panel has issued an important new ruling, and created a circuit split, concerning the calculation of loss under the federal sentencing guidelines for economic frauds.  The ruling comes in US v. Berger, No. 08-50171 (9th Cir. Nov. 30, 2009) (available here), which starts this way:

Defendant-Appellant Richard I. Berger appeals the sentence imposed by the district court following our affirmance of his conviction for twelve counts of bank and securities fraud. Berger argues that, in sentencing him on remand, the district court erred by: (1) not adhering to the civil loss causation principle in finding shareholder loss, as described by the Supreme Court in Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 342-48 (2005); and (2) applying an erroneous standard of proof in determining total loss for sentencing enhancement purposes.  While we decline to extend the Dura Pharmaceuticals principle to criminal securities fraud, we conclude that the district court’s loss calculation approach was nevertheless flawed.  Thus, although we conclude that the district court used the correct standard of proof in determining the total loss, we vacate Berger’s sentence and remand to the district court for resentencing.

As the Ninth Circuit panel notes in Berger, the Second and Fifth Circuits have both expressly adopted the civil loss causation principle of Dura Pharmaceuticals in the context of calculating loss for guideline sentencing purposes.  In light of this new Berger ruling and the potential importance of this issue in many white-collar sentencing cases, it may be only a matter of time before the Supreme Court needs to get in the mix on this guideline-calculation federal sentencing matter.

November 30, 2009 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

SCOTUS finally grants cert on important "good time" federal sentence calculation issue

As detailed in this SCOTUSblog post, the Supreme Court this morning granted cert in three new cases, two of which involve criminal justice matters.  Though constitutional law fans may be most interested in Renico v. Lett (09-338), which examines double jeopardy limits after a state judge declared a mistrial on certain grounds, sentencing law and policy fans should be most excited by the grant in a long-running debate concerning the calculation of federal good time credits.  Here is SCOTUSblog's effective summary of this technical, but very important, new sentencing case:

In a second new case, the Court will spell out how the federal prison system is to calculate the credits that inmates receive for good conduct while behind bars.  The issue in Barber, et al., v. Thomas (09-5201) is how to interpret the federal law that provides up to 54 days “at the end of each year of the prisoner’s term of imprisonment.”  Bureau of Prisons officials interpret “term of imprisonment” to mean time served, not the sentence imposed — a policy that results in seven fewer days of available credit for each year of the actual sentence, the petition argued.  Lower courts are split on the question.

I know that some federal defenders and others have been buzzing about this issue for a very long time, in part because this matter impact every federal defendant sentenced to more than one year in prison.  And my first instinct is that a ruling for federal defendants could significantly move up release dates for some long-serving federal prisoners.

November 30, 2009 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11) | TrackBack

SCOTUS summarily reverses Eleventh Circuit's rejection of capital defendant's IAC claim

Continuing its recent trend of doing capital case error-correction through summary reversals, the Supreme Curt this morning issued this per curiam opinion in Porter v. McCollum (08-10537) reinstating a district court's habeas grant on the ground of ineffective assistance of cousel.  The grant had been reversed by the Eleventh Circuit, but here is how the SCOTUS opinion begins reversing the Eleventh Circuit's work:

Petitioner George Porter is a veteran who was both wounded and decorated for his active participation in two major engagements during the Korean War; his combat service unfortunately left him a traumatized, changed man.  His commanding officer’s moving description of those two battles was only a fraction of the mitigating evidence that his counsel failed to discover or present during the penalty phase of his trial in 1988.

In this federal postconviction proceeding, the District Court held that Porter’s lawyer’s failure to adduce that evidence violated his Sixth Amendment right to counsel and granted his application for a writ of habeas corpus.  The Court of Appeals for the Eleventh Circuit reversed, on the ground that the Florida Supreme Court’s determination that Porter was not prejudiced by any deficient performance by his counsel was a reasonable application of Strickland v. Washington, 466 U. S. 668 (1984).  Like the District Court, we are persuaded that it was objectively unreasonable to conclude there was no reasonable probability the sentence would have been different if the sentencing judge and jury had heard the significant mitigation evidence that Porter’s counsel neither uncovered nor presented. 

November 30, 2009 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack

How will Mike Huckabee clemency grant to suspected cop killer impact crime and justice debates?

As this CNN article explains in its morning coverage of a still-developing crime story, former Arkansas Governor Mike Huckabee has a notable place in backstory of a suspected cop-killer:

The suspect in the fatal shooting of four police officers kept authorities at bay early Monday -- seven hours after a massive manhunt tracked him to a house in an east Seattle neighborhood.

Authorities had been looking for Maurice Clemmons in connection with an "ambush" Sunday morning at a coffee shop near Tacoma in Pierce County. Four officers -- three males, one female -- died in the attack. Authorities early Monday started identifying Clemmons as a suspect, rather than as someone wanted for questioning, a change that they did not explain.

About 8 p.m. Sunday, police received word that Clemmons had holed up in a home in the Leschi neighborhood. Police blocked off streets and asked residents to stay inside with their doors locked.

Clemmons is a convicted criminal with a long rap sheet who had a 95-year prison sentence commuted in 2000 by then-Arkansas Gov. Mike Huckabee, said Pierce County sheriff's spokesman Ed Troyer. Huckabee, a Republican presidential candidate in 2008, is considering a run for president in 2012. "Should [Clemmons] be found responsible for this horrible tragedy, it will be the result of a series of failures in the criminal justice system in both Arkansas and Washington state," Huckabee's office said in a statement Sunday night.

It perhaps goes without saying that this high-profile event, like the infamous Willie Horton ads two decades ago, could further contribute to giving all clemency grants a very bad name and likely will make governors and presidents even more skittish about how they use their clemency power. Of course, maybe this is how it should be if governors and presidents are seriously considering granting clemency regularly to defendants with a risk profile that seems as significant as the defendant's in this tragic case.

November 30, 2009 in Clemency and Pardons, Offender Characteristics, Who Sentences? | Permalink | Comments (38) | TrackBack

"Why the Prior Conviction Sentencing Enhancements in Illegal Re-Entry Cases are Unjust and Unjustified (and Unreasonable Too)"

The title of this post is the headline of this new article by Doug Keller now available via SSRN. Here is the abstract:

This article discusses an important sentencing issue that affects thousands of lives each year that has nevertheless received little scholarly attention: the harsh prior-conviction sentencing enhancements defendants can receive in illegal re-entry cases—and only in illegal re-entry cases.  The Sentencing Commission created and then sculpted the enhancements through a perfunctory process that radically altered illegal re-entry sentencing, shifting the focus from the defendant’s current offense to the status of his worst prior conviction. Depending on the nature of the prior conviction, a defendant can see his base offense level of 8 swell by 4, 8, 12, or 16 levels.  In concrete terms, that means a defendant can see his sentence increase by 1 to 8 years—costing taxpayers up to $200,000—because of a single prior conviction that could have occurred years or even decades ago. Indeed, a defendant who qualifies for the enhancement will often spend more time in federal prison for his prior conviction (under the guise of being punished for illegal re-entry) than he spent in prison originally for the prior conviction.  No other federal crime is punished based primarily on what the defendant previously did.  And the crimes that trigger the 16-level increase are not the worst of the worst, as simple assault (throwing a rock at a car), minor threats (“Give me $10 or I’ll key your car”), and petty property damage (causing $35 worth of damage to another’s property with a match) can trigger the 16-level increase.  That means that a rock thrower can receive the same enhancement as a terrorist, child molester, murderer, or rapist.

Despite the unusual nature of the enhancement, the Commission has never provided a justification for it, nor is one apparent.  Moreover, the enhancement undercuts Congress’s goal of reducing sentencing disparity and mandate sentences that are disproportionate to the crime of illegal re-entry.  This article argues that this regime must come to an end. While courts were previously powerless to do anything about the Commission’s indiscriminate decision making, that is no longer the case. Since the Supreme Court held that the Guidelines are not mandatory (fixing a constitutional defect), courts must now evaluate the reasonableness of the Guidelines themselves before imposing a sentence.  Even a cursory examination of the prior-conviction enhancements shows that they are unreasonable and should not be followed, even in the typical case.

November 30, 2009 in Federal Sentencing Guidelines, Offender Characteristics | Permalink | Comments (4) | TrackBack

Interesting California ruling on juries and medical marijuana

Thanks to How Appealing, I discovered this interesting ruling from one of California's Courts of Appeal concerning a state marijuana prosecution.  As this article in the San Diego Union-Tribune explains, this court "ruled that exactly how much marijuana a medical-marijuana user can legally possess is a question that jurors should decide, and using limits defined in state law is improper." Here's more:

Nathaniel Archer of San Diego was appealing his 2007 convictions for cultivating and possessing marijuana. Archer was a medical-marijuana patient who was arrested by San Diego police with 98 pot plants in his residence and an additional 1.72 pounds of dried marijuana.

He was convicted and sentenced to probation. The appeals court reversed his convictions for possession of the drug, concluding that it was wrong to use limits that the Legislature established in 2003 on the amount of marijuana a patient could have. That law amended the Compassionate Use Act, the voter-approved initiative in 1996 that allowed the medical use of marijuana. Under the state constitution, the Legislature can’t amend an initiative, unless doing so is specifically allowed in the initiative’s language that voters approve.

The Supreme Court heard arguments on that same issue Nov. 3 in an unrelated case, and a ruling is expected soon. Most observers expect the court to strike down the numerical limits as unconstitutional.

In Archer’s case, the Attorney General’s Office conceded that the numerical limits were indeed unconstitutional, the opinion says. It argued his possession conviction should stand because telling jurors to use the numerical limits, as Superior Court Judge Kerry Wells did at Archer’s trial, was not prejudicial.

Justice Patricia Benke, who wrote the opinion, disagreed. Benke said that with both sides conceding the numerical limits were unconstitutional, the only standard that could be applied was whether the amount of marijuana was “reasonably related” to a patient’s medical needs.

Archer testified that he used about half a pound of marijuana per month. It would be up to a jury to decide how much of the 1.7 pounds he possessed — about a three-month supply, Benke calculated — was reasonably related to his medical needs.

Russell Babcock, Archer’s lawyer, said the decision will have an impact on other cases. “This has real ramifications,” Babcock said. “It becomes a case-by-case basis for juries of reasonableness.” Some patients use large amounts of the drug, because they use it in baked products, lotions, oils or other applications.

Alex Kreit, a professor at the Thomas Jefferson School of Law and head of San Diego’s Medical Marijuana Task Force, said that the decision is important because it means people will not be automatically subject to prosecution if they exceed the limits.

November 30, 2009 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

November 29, 2009

Will litigation over Ohio's new one-drug lethal injection protocol move fast or slow?

As detailed in this prior post, just before Thanksgiving a Sixth Circuit panel removed a stay blocking Ohio's scheduled December 8 execution of Kenneth Biros.  That stay was based on challenges to Ohio's old three-drug lethal injection protocol, which the state has now abandoned in favor of a one-drug protocol.  As detailed in this AP article, Biros on Friday appealed this decision to the full Sixth Circuit, but it is unclear whether Biros is still objecting to the old protocol or whether he is asking the Sixth Circuit to look at Ohio's new one-drug protocol.

This litigation uncertainty in the Biroscase is just one part of the broader questions I have concerning the process and pace of litigation over Ohio's new and novel one-drug lethal injection protocol.  I would think that the change in the state's protocol could give Biros and other death row defendants a basis for bringing new legal challenges in Ohio state courts as well as in federal districtcourt.  And I would also think that litigation focused on the new protocol could take quite some time to resolve in all the different potential trial and appellate levels (including both the Ohio and US Supreme Courts) if any judges have any serious concerns about the development, adoption and implementation of the new protocol. 

And yet, the state seems eager to get its execution chamber humming again ASAP.  When adopting the new protocol, Ohio made clear that it could, and wanted to, move forward with the scheduled December 8 execution of Biros.  In addition, because Ohio has at least one execution scheduled for each of the next five months, I suspect the state will make a serious effort to avoid or reduce any litigation delays.  Even if some judges want to go slow in reviewing Ohio's new protocol, the state's lawyers could try to quickly press appeals to higher courts in an effort to keep pending execution dates.

Because I am not privy to all the legal papers being filed and/or contemplated on all sides, I am disinclined to predict the likely process and pace of litigation over Ohio's new one-drug lethal injection protocol.  But I am hopeful that readers might not be afraid to venture guesses or educated speculation concerning how this issue will play out in the courts in the weeks and months ahead.

Some related posts on Ohio lethal injection issues:

November 29, 2009 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (7) | TrackBack

"Federal judges argue for reduced sentences for child-porn convicts"

The title of this post is the headline of this long front-page article in today's Denver Post.  Here are excerpts:

In a nationwide series of hearings, members of the U.S. Sentencing Commission have heard from federal judges seeking reduced sentences for a group of defendants one would think unlikely to get sympathy from the bench: possessors of child pornography.

From New York to Chicago, and recently in Denver, federal judges have testified before the commission, which sets federal punishments, that the current sentencing structure for possessing and viewing child pornography is too severe.

The commission has made reviewing child-pornography sentencing guidelines a priority of its work, which will end in May and could include a change to the guidelines to allow shorter sentences for future offenders.

Judges, for the most part, have based their argument on a belief that some of the defendants who view child pornography have never molested a child or posed a risk to the community and may be better served by treatment rather than prison.

As federal guidelines now stand, the number of images and the way the contraband is obtained enhance prison terms. A first-time offender with no criminal history can be sentenced to 10 years in federal prison....

In 1995, federal defendants convicted of possessing child pornography were sentenced to an average of 15 months in prison, Ilgen's attorney wrote in court documents. By 2007, first-time child-pornography offenders were receiving 102 months in federal prison....

Ernie Allen, president and chief executive of the National Center for Missing and Exploited Children, said some judges don't realize possessing the images revictimizes the children in the photographs and fuels a growing online business. "There are too many judges who continue to provide token sentences for what we consider to be serious crimes," Allen said. "These are images of prepubescent children, growing numbers of them infants and toddlers, and they trade with each other for purposes of arousal and breaking down the inhibitions of other children."

Allen said educating the judiciary about the impact of child pornography on victims is key. "We are not in favor of disproportionate sentencing or disparities, but the problem here is too many judges who simply do not recognize how serious these crimes are," he said.

A few related recent child porn sentencing posts:

November 29, 2009 in Federal Sentencing Guidelines, Sex Offender Sentencing | Permalink | Comments (12) | TrackBack