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July 8, 2010

Kudos to Professor Erik Luna for being cited by Lindsay Lohan in her Twitter rant about her jail sentence

I thought that I had reached a sentencing pop-culture zenith a few years ago when, as detailed here, ESPN's Mike & Mike made fun of me on their ESPN morning radio show.  But my good friend and colleague Professor Erik Luna has now clearly topped me; as detailed in this CBS News report, he got cited by Lindsay Lohan in a Twitter rant about her recent sentencing:

Lindsay Lohan is making it clear to the world that she thinks her 90-day jail sentence was an unjust ruling. In a series of posts on her Twitter account, the troubled Hollywood starlet protested her innocence while also expressing her frustration towards the "constitutionally perverted" justice system.

"It is clearly stated in Article 5 of the UN Universal Declaration of Human Rights that ... 'No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment,'" she first wrote yesterday.

Moments later she tweeted a quote from a 2002 article by legal scholar Erik Luna: "'November 1 marked the 15th anniversary of the U.S. Sentencing Guidelines.  But there were no ... celebrations, parades, or other festivities in honor of this punishment scheme created by Congress and the US Sentencing Commission....'"

"'Instead, the day passed like most others during the last 15 years: Scores of federal defendants sentenced under a constitutionally perverted' ... system that saps moral judgment through its mechanical rules.'"...

Lohan received a 90-day jail sentence Tuesday after a Beverly Hills judge ruled she violated probation over a three-year-old drug case.

You just got to love when an (in)famous defendant starts citing international law and criticisms of federal sentencing law to complain about the state sentence she has received from a local judge.  Despite that technical concern about the subsatnce of Lindsay Lohan's Twitter rant, it is truly heartening to learn that troubled hollywood starlets still take time to read legal scholarship, even though it seems most judges and practicing lawyers have given up on the stuff.

Related recent Lohan sentencing posts:

July 8, 2010 at 01:05 PM | Permalink

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Comments

Great post. I especially like the last sentence!

Posted by: Adam Kolber | Jul 8, 2010 1:26:17 PM

Wow...professing innocence and discussing the perversion of the justice system. She's really taken this lesson to heart. I hate it when I'm right.

How 'bout them earlier breaks, Linds? How 'bout when you violated your probation conditions--twice--and still weren't held in contempt and thrown in a cell, like us normal folk would have been? Oh, right...the justice system is only perverted when it doesn't work in your favor.

The good news about self-entitled hacks like Lohan is, they always give prosecutors another shot. I'll be awaiting protests of her "unfair" sentence for her third DUI conviction--and likely attendant probation violations and contemptuous actions--within a couple years.

Posted by: Res ipsa | Jul 8, 2010 1:37:53 PM

Regarding the observation in your final sentence, it's important to know your audience.

On the state/federal distinction, I hear elected officials and supposedly educated people demonstrate they don't understand that nuance all the time. (Ditto for the difference between probation and parole.) I'll bet if you polled the public, nine out of ten non-attorneys couldn't accurately tell you the role of the US Sentencing Commission if you put a gun to their head.

Quoting the UN Declaration of Human Rights, however, is truly priceless!

My question: Why does anyone care what Lindsay Lohan does, and why does Res Ipsa care so much s/he will be waiting "years" to gloat over her supposedly attendant misfortunes?

Posted by: Gritsforbreakfast | Jul 8, 2010 2:03:00 PM

Lindsay Lohan's sentence an outrage says the Guardian.
(tongue firmly planted in cheek)

http://www.guardian.co.uk/lifeandstyle/lostinshowbiz/2010/jul/08/lindsay-lohan-prison

Posted by: Robert | Jul 8, 2010 3:18:00 PM

Ms. Lohan's condemnation of the Guidelines does more to vouch for them than anything I have ever said. Especially rich is that they're a violation of "human rights."

Ms. Lohan, you are a national treasure. Please keep up the good work.

Posted by: Bill Otis | Jul 8, 2010 3:50:23 PM

Grits--

I have to confess a lot of my rants are hyperbole. But the truth is, I truly want to believe in a fair justice system. Obviously errors will be committed from time to time because the system is built upon human judgment, but I at least want to be able to say that the dice aren't completely loaded for or against anyone.

This story, and the whole slew of similar celebrity sentencing stories, is an insult to that hope, and it frankly outrages me. Charlie Sheen shoots one girlfriend, beats another, and then doesn't receive any jail time on the third assault. Lohan has been outright contemptuous of the justice system since her first DUI, and even the prospect of a jail sentence has not deterred her from sophomoric vulgarities and invocation of a fundamental right to party--yet she'll likely serve no more than 30 days. Andrew Sullivan gets all pot charges dropped because of "prosecutorial discretion," a consideration that no one on this blog would have gotten.

The fact is, the dice are very loaded in favor of those with money and fame. And until we start treating the rich and famous the same as the least among us, our justice system will be only an eldorado.

I don't really care what Lohan does--or Sheen, or anyone else in particular. What I care about is what they represent.

Posted by: Res ipsa | Jul 8, 2010 4:43:58 PM

I thought her 90 day sentence was an indication of the viability of the Equal Protection Clause not an example of its demise, so it's funny to hear her cite the guidelines as if she and the crack dealers subject to 100 to 1 disparities are somehow related. In fact, as my 13 year old daughter watched E news I remarked that even an actress who tests positive and doesn't take probation seriously has to "feel the steel" eventually, even in Hollywood. I thought it was a good lesson for my daughter that even child stars don't have special rules. Hopefully soon she'll get to the point Robert Downey was at when he said "I'm just a guy with a drug problem." Look where a little humility and a lot of work in his program eventually took him. Hopefully this is a symptom of addiction and not simply an indication that Lindsay will let this lesson lie on the table instead of picking it up and making use of it.

Posted by: David | Jul 8, 2010 6:33:15 PM

Right. Laws and prison are for poor obscure people. This is a horrible injustice. She is truly the Nelson Mandela of her generation.

Posted by: KRS | Jul 9, 2010 8:23:55 AM

Bill Otis writes, "Ms. Lohan's condemnation of the Guidelines does more to vouch for them than anything I have ever said." I certainly agree with that assessment of the relative quality of Bill's past argumentation.

Res Ipsa, you're able to get a lot more ginned up over celebrity sentencings than I ever could. Is there someplace I can go to read your complaints about bankers, lawyers, business leaders, and other wealthy (but non-celebrity) people getting lighter sentences than the poor, or is it only an issue for folks you've seen on TV? Also, I don't recall any laws on the books regarding "sophomoric vulgarities and invocation of a fundamental right to party," and if there were they'd be locking up an awful lot of US college students for the offense.

This seems like a completely typical result and an utterly unnewsworthy event, but I'm seeing commentary on it all over. Celebrity obsession is a bizarre thing.

Posted by: Gritsforbreakfast | Jul 9, 2010 8:52:44 AM

Grits--

Yes, you can--on many occasions on this blog. I've decried white collar sentencings as generally too light (and applauded Denny Chin for finally treating white collar crime seriously). I ranted on the teenage girl from a rich familiy who killed her boyfriend during a DUI and then posted drunk pictures of herself on facebook, yet only got negligent homicide and was allowed to leave the jurisdiction to vacation during a pending criminal case. I've attacked the "community ties" justification for reduced sentencings as a de facto means to arbitrarily cut breaks to wealthy individuals. On the Andrew Sullivan post, I noted that "prosecutorial discretion" only seems to be reserved for wealthy or famous individuals, not for, say, harmless high schoolers who want to smoke a bowl or have a drink in a field.

The difference is, as you aptly note, celebrity sentencings get more press--and it seems to me, get more egregious breaks as a general matter, which is why I get exorcised the most on them. I do, however, see a general problem with leniency for the wealthy, and I think my participation on this blog (for better or worse) shows a consistent view.

Posted by: Res ipsa | Jul 9, 2010 9:32:44 AM

If Ms. Lohan has not driven a car after drinking since her last arrest, then she probably believes she is in substantial compliance with the court. In other words, her arrest and probation is fulfilling the purpose of the law this time and it could very well be that if the treatment center excused her absenses she thought she was in compliance. That she has not tested positive for any drugs is a very good sign.

Although funny, her attempted citations to the law only preview how easy it is to misunderstand the law, and the media once again fails to explain it well enough for deterrence to actually work because for deterrence to be effective it must be based on a realistic understanding of law. Her lawyer should have explained it better, but failing that, the judge should have.

The Traffic Court Blog does explain it well in Lindsay Lohan Gets Hammered on DUI Probation Violations.

Apparently, Lindsay Lohan is not getting any special treatment.

Posted by: George | Jul 9, 2010 10:51:55 AM

Grits is right about ignorance of the law. I covered state and federal courts early in my newspaper career and law issues were always in the mix of my interests and duties as an editorial writer and editor. Yet I never fully appreciated what a dark, bottomless rabbit hole lawyers inhabit until I delved more deeply into it for a book project.

And res, by insisting the punishment should be ratcheted up till LiLo's spirit has been broken, certainly improves his standing with the League of Stern Disciplinarians.

The problem isn't that celebrities are treated too gently. It's that everyone else is treated too harshly.

The system seems to pride itself more for its prolific, mechanistic, spectacular incarceration totals than for wise, restrained applications of justice. Somewhere in the process of clinking all those cell doors shut, calluses formed and society's grand jailers lost touch with the misery and suffering even "overly lenient" prison sentences impose on inmates and their families.

I'd urge anyone who thinks 22 days in a cell is lenient for a relatively minor probation violation to confine themselves to their bedroom for 22 days. Then I'll be more interested in their opinion about what's lenient and what's not.

Posted by: John K | Jul 9, 2010 1:07:27 PM

hmm this is so so good!

"Grits is right about ignorance of the law. I covered state and federal courts early in my newspaper career and law issues were always in the mix of my interests and duties as an editorial writer and editor. Yet I never fully appreciated what a dark, bottomless rabbit hole lawyers inhabit until I delved more deeply into it for a book project.

And res, by insisting the punishment should be ratcheted up till LiLo's spirit has been broken, certainly improves his standing with the League of Stern Disciplinarians.

The problem isn't that celebrities are treated too gently. It's that everyone else is treated too harshly.

The system seems to pride itself more for its prolific, mechanistic, spectacular incarceration totals than for wise, restrained applications of justice. Somewhere in the process of clinking all those cell doors shut, calluses formed and society's grand jailers lost touch with the misery and suffering even "overly lenient" prison sentences impose on inmates and their families.

I'd urge anyone who thinks 22 days in a cell is lenient for a relatively minor probation violation to confine themselves to their bedroom for 22 days. Then I'll be more interested in their opinion about what's lenient and what's not."

can you say BINGO! this hit it right on the head!

Posted by: rodsmith | Jul 9, 2010 1:45:51 PM

"I don't recall any laws on the books regarding 'sophomoric vulgarities and invocation of a fundamental right to party.'"

Most people with even a passing acquaintance with sentencing law recall that the defendant's attitude is properly taken into account by the court.

The alternative -- that her attitude should NOT be taken into account -- is absurd.

Posted by: Bill Otis | Jul 9, 2010 9:28:21 PM

a 90-day sentence, for dangerous behavior, constitutes torture? geez, i'd hate to see what she'd think of all of those California non-violent three-strikes LWOP sentences!

Posted by: nc atty | Jul 13, 2010 3:11:32 PM

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