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June 29, 2010

A few final wins for criminal defendants on the final day of the SCOTUS Term

Though yesterday felt like the final day of the October 2009 Supreme Court Term, the Justices actually released today a final set of orders.  And, as effectively described in this SCOTUSblog post, this final set of orders included some notable victories for a few criminal defendants:

The Court sent back to lower courts for another look the convictions of the former Alabama governor and a top health industry executive on charges of arranging large campaign contributions in return for official favors on state health policy.  The lower courts are to reexamine those cases under the Court’s decision last week in Skilling v. United States — a ruling that significantly narrowed the federal fraud law as it applies to corruption schemes.   The returned cases are Scrushy v. U.S. (09-167), involving Richard M. Scrushy, founder and CEO of HealthSouth Corp., and Siegelman v. U.S. (09-182), involving former Gov. Don Eugene Siegelman. [SL&P addition: This order list also includes five other Skilling GVR's]...

Also sent back to a lower court was Maloney v. Rice (08-1592), a case in which Justice Sonia Sotomayor, when she was a member of the Second Circuit, had also ruled that the Second Amendment does not apply to state and local government levels.  The Maloney case did not involve guns, but rather tested a New York state law that bans personal possession of a martial arts device — a nunchaku — that also can be used as a weapon.   Justice Sotomayor did not take part in the Maloney order Tuesday.

Over the objection of four Justices, the Court issued a summary decision in a highly unusual death penalty case, in which the defense attorney had sought to win favor with the jury by portraying the individual’s childhood as stable, loving, and “essentially without incident” as a way to show that a death sentence would devastate the individual’s family, who wee shocked and dismayed by the crime.  But, the Court concluded Tuesday, that strategy backfired, and prosecutors used that background evidence. suggesting that the individual had led a “privileged” life,  in their closing argument and obtained a death sentence.  The majority said that the defense lawyer’s choice of that theory led to a completely inadequate investigation of a childhood that was immersed in parental abuse, and the youth had suffered head injuries that doctors deemed significant enough to impair his capacity.  The case involved Demarcus Ali Sears, convicted of murder in Georgia — a woman was kidnapped in Georgia, and killed in Kentucky.  Sears was sentenced to death.  The Court’s ruling came in an unsigned (“Per Curiam”) decision, apparently on a 5-4 vote.  Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr., noted that they would have denied review.  Justice Antonin Scalia dissented, joined by Justice Clarence Thomas.  The case was Sears v. Upton (09-8854).

The substantive Sears ruling spotlights that there are still five votes to summarily reverse in those capital cases in which the affirmance of a state death sentence bothers the liberal wing of the Court. 

Especially in light of the historic role that Justice Stevens played in the evolution of the Court's capital jurisprudence, it is fitting that Justice Stevens engineered a final win for a capital defendant on his way off the Court.  And it is now useful and interesting to speculate as to whether likely future Justice Elena Kagan will be just as willing and eager to side with death row defendants in future Terms.

June 29, 2010 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

The "Silent Six" states worth watching for post-McDonald Second Amendment litigation

Back in October 2009 the Supreme Court accepted cert in the McDonald case, I asked in this post "What state and local issues will be litigated the most if (when?) Heller is incorporated?".  Though that post did not generate many responses, I suspect this question is now on the minds of many government lawyers who may be tasked with having to defend state and local gun regulations against new Second Amendment attacks in the wake of McDonald.

Though a diverse array of gun regulations will likely be subject to a diverse array of post-McDonald Second Amendment attacks in lower courts, I will be watching most closely how Second Amendment litigation unfolds in the six states that lack any state constitutional provisions concerning arms or gun rights: California, Iowa, Maryland, Minnesota, New Jersey and New York.  (Professor Eugene Volokh long ago created on-line this terrific list of state constitutional provisions concerning arms.)  Here are at least three reasons why these states — which I will call the "Silent Six" (or should it be Silencer Six) —  seem worth watching extra closely after McDonald:

1.  Lack of any controlling state constitutional law precedents.  In states with constitutional provisions concerning arms, there will be some judicial precedents that state judges can consider and reference when sorting through new Second Amendment claims.  But in the "Silent Six," state judges will be working on a mostly blank jurisprudential slate.  These state judges can and surely will look for guidance from gun rulings from other jurisdictions.  Still, the state judges in the "Silent Six" states will have a unique freedom (and unique necessity) to develop Second Amendment jurisprudence without any existing law to restrict or guide them.

2.  Large, diverse states with urban and rural settings.  Most of the "Silent Six" states are, relatively speaking, pretty big with big populations spread diversely around the state.   There are many rural parts of New York and California, for example, that are likely to be favorable to gun rights and to have local judges sympathetic to an expansive view of gun rights.  But there are also many urban centers in these states that tend to be hostile to gun rights and likely have local judges who reflect local attitudes.  Especially if and when early Second Amendment challenges are brought in these "Silent Six" states, early outcomes may turn on just where in the state a challenge is initially brought (and on which local judges are most eager to rule quickly on these claims).

3.  Mostly blue and politically important, dynamic states.  Most of the "Silent Six" tend to vote for Democrats, though Minnesota and New Jersey right now have high-profile Republican Governors.  Meanwhile, California, Maryland and New York have important state-wide elections taking place this November, and Iowa is where all Presidential campaigns get started.  These realities could make early constitutional litigation over state's gun regulations a hot political topic in the months (and years) ahead in the "Silent Six."  Against the backdrop of developing Second Amendment litigation, I wonder if former federal prosecutor and now Republican NJ Governor Chris Christie will continue to defend strict NJ gun control as he seemed to do in this interview with Sean Hannity back in October.  Similarly, as California laws get challenged, I wonder if Republican candidate Meg Whitman will stick with this reported statement last year that she "believes tough gun laws like assault weapon bans and handgun control are appropriate for California."

Some old and new recent related posts on state litigation and McDonald

June 29, 2010 in Second Amendment issues, Who Sentences? | Permalink | Comments (11) | TrackBack

High-profile below-guideline political corruption sentence headed to Third Circuit

As detailed hereand in other posts linked below, last summer brought lots of discussion and debate over the 55-month prison sentence imposed on Pennsylvania state lawmaker Vincent Fumo for his convictions on various corruption charges.  Because Fumo was convicted at trial of many charges involving lots of corruption, most commentary assailed his below-guideline sentence as too lenient.  And now, as these newspaper reports highlight, this high-profile federal sentencing debate is going to be heading to the Third Circuit:

Because Fumo is in his late 60s and because the Sentencing Commission has new proposed amendments that indicate that age now is a potentially relevant departure factor, this case may be extra interesting in its briefing and argument concerning reasonableness review.  That said, I suspect the government's appeal will stress what it views as procedural errors that it will say played a role in the sentence Fumo got from the district court.

Related prior posts on Fumo sentencing:

June 29, 2010 in Booker in district courts, Booker in the Circuits, Offender Characteristics, Offense Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

"Civil, Criminal, or Mary Jane: Stigma, Legislative Labels, and the Civil Case at the Heart of Criminal Procedure"

The title of this post is the title of this new piece on SSRN by Professor W. David Ball. David always has interesting stuff to say about the Supreme Court's Apprendi jurisprudence, and the abstract to this article spotlights this fact:

In criminal cases, any fact which increases the maximum punishment must be found by a jury beyond a reasonable doubt.  This rule, which comes from Apprendi v. New Jersey, looks to what facts do, not what they are called; in Justice Scalia’s memorable turn of phrase, it applies whether the legislature has labeled operant facts “elements, enhancements, or Mary Jane.”  Civil statutes, however, can deprive an individual of her liberty on identical facts without needing to meet the beyond a reasonable doubt standard of proof.  If Apprendi is, indeed, functional, why is it limited to formally criminal cases?  Why does it not apply to all punishments, no matter whether they are called civil, criminal, or Mary Jane?

One often-proposed answer is that Apprendi derives its holding exclusively from the Sixth Amendment, and the Sixth Amendment applies only to “criminal prosecutions.”  Apprendi is not, however, just a Sixth Amendment case.  Its “beyond a reasonable doubt” requirement comes from due process -- specifically, from a formally civil case, In re Winship, which explicitly rejects the idea that civil labels can insulate a state from heightened procedural obligations.  Apprendi’s application cannot, therefore, be limited on formal grounds to criminal cases.  To determine the limits of its application, one must instead return to the interests that both Winship and Apprendi identify as worthy of protection: the imposition of stigma and the deprivation of liberty.

This Article examines the due process roots of the Apprendi line and proposes that stigma is the substantive concern that separates retribution from regulation, punishment from public safety.  Using sociology’s modified labeling theory, I provide a substantive definition of stigma and explore how a unified due process approach, with stigma at its heart, might provide a more meaningful way to separate punishment from risk management.  This approach would move judicial discourse away from empty, taxonomic arguments about legislative labels towards an examination of the effects laws have on the lives of those subjected to them, a conversation which would more accurately and comprehensively address the values and interests at the heart of the justice system.

June 29, 2010 in Blakely Commentary and News, Criminal Sentences Alternatives, Who Sentences? | Permalink | Comments (3) | TrackBack

A few notable capital cert denials in yesterday's SCOTUS action

As detailed in these local stories from Missouri and Texas, there were a few noteworthy denials of cert by the Supreme Court in capital cases within the order list released yesterday: 

June 29, 2010 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (0) | TrackBack

"The Case for Treating Drug Addicts in Prison"

The title of this post is the headline of this interesting new piece in Newsweek.  Here is an excerpt:

Of the 2.3 million inmates in the U.S., more than half have a history of substance abuse and addiction. Not all those inmates are imprisoned on drug-related charges (although drug arrests have been rising steadily since the early 1990s; there were 195,700 arrests in 2007). But in many cases, their crimes, such as burglary, have been committed in the service of feeding their addictions....

Over the last few years, some in the justice system have warmed to the idea of treating drug addicts in addition to (or instead of) incarcerating them.  In some states, most notably Ohio, almost all first-time drug offenders and many second-timers are offered treatment. That is by no means the case nationally. According to a report released last year by the National Institute on Drug Abuse, just one fifth of inmates get some form of treatment.  That number may be lower in the near future: tight budgets are forcing many states to cut back or close down their existing treatment programs.  Kansas and Pennsylvania have already done so; California and Texas may follow suit in the next few months.

The irony here is that by lowering recidivism, the programs themselves save money in the long run.  The NIDA report released last year cited a remarkable statistic: heroin addicts who received no treatment in jail were seven times as likely as treated inmates to become re-addicted, and three times as likely to end up in prison again.  For every dollar spent, the programs save $2 to $6 by reducing the costs of re-incarceration, according to Human Rights Watch.  Looked at another way, the programs can save the justice system about $47,000 per inmate.

So why would prisons target their own treatment programs in an effort to cut costs?  Part of the reason is that pharmacological treatment — such as giving heroin addicts methadone to help them through withdrawal — requires a lot of regulation, and thus it’s expensive in the short run.... [P]oliticians may oppose treatment (at least publicly), especially if they’re worried about being seen as soft on crime. And even if they support the idea, with state budgets under a crunch, treatment can start to look expendable.

June 29, 2010 in Prisons and prisoners, Purposes of Punishment and Sentencing | Permalink | Comments (4) | TrackBack

June 28, 2010

Puzzling through the doctrine and dicta of McDonald on the Second Amendment's limits

As regular readers know, I have always had a hard time squaring the Heller opinion's doctrinal embrace of an individual Second Amendment right to keep and bear arms for self-defense with its dicta suggesting that former felons can still be criminally punished (sometimes severely) for gun possession.  The Supreme Court's explanation today in its McDonald opinion as to why and how Heller now applies to the states continues to puzzle me concerning the linkage of Second Amendment doctrine and dicta.

As for doctrine, Justice Alito's chief opinion calls self-defense "a basic right" and explains that "in Heller, we held that individual self-defense is 'the central component' of the Second Amendment right. Slip op.at 19 (emphasis in original).  In addition, Justice Alito's opinion repeatedly describes Second Amendment rights as "fundamental," and it expressly rejects the Respondents' arguments that "in effect, ask us to treat the right recognized in Heller as a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees that we have held to be incorporated into the Due Process Clause."  Slip op. at 33.  In short, individual gun rights are "fundamental," they help safeguard another "basic right,"  and they must not be treated as "second-class [and thus] subject to an entirely different body of rules than the other Bill of Rights guarantees." 

But can anyone think of any other "fundamental" right, which fosters another "basic" right and is a "Bill of Rights guarantee," that legislatures can categorically and forever prohibit former felons from exercising?  Consider the First Amendment: would it be constitutional to prohibit former felons from writing a newspaper op-ed or from attending a church after they have fully completed their lawfully imposed punishment?  Or consider the Fifth Amendment: would it be constitutional to prohibit former felons from receiving just compensation when their property is taken?   (Of course, allowing former felons to retain some Second Amendment rights could pose a threat to public safety, but Justice Alito rightly notes that many constitutional rights have "controversial public safety implications."  Slip op. at 35-36.)

And yet, toward the end of his opinion, Justice Alito in dicta "repeats [Heller's] assurances" that the Court's Second Amendment rulings do "not cast doubt on such longstanding regulatory measures as 'prohibitions on the possession of firearms by felons'."  Slip op. at 39-40.  But doesn't this dicta essentially connote that the Second Amendment really is going to exist as "a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees"?

Some older posts on the Heller and felon gun rights:

June 28, 2010 in Gun policy and sentencing, Second Amendment issues, Who Sentences? | Permalink | Comments (44) | TrackBack

The Pepper cert grant and post-sentencing rehabilitation as a sentencing factor

As noted in this earlier post, this morning the Supreme Court granted cert in Pepper v. United States (docket here), which will call for a review of this Eighth Circuit opinion.  Though I have not yet tracked down the cert petition in Pepper, a helpful reader sent me the opposition to cert from the Solicitor General's office, and here are the questions presented appearing in this cert op (which can be downloaded below):

1. Whether, at petitioner’s resentencing following the government’s appeal, the district court was required to apply the same percentage departure from the Guidelines range for substantial assistance that had been applied at petitioner’s initial sentencing.

2. Whether post-sentencing rehabilitation is an impermissible basis for varying downward at resentencing from the advisory Guidelines range under 18 U.S.C. 3553(a).

Download Pepper_Cert_Op

Interestingly, though the SG's cert op in Pepper says the Eighth Circuit got Question 1 right, the SG concedes that the Eighth Circuit got Question 2 wrong.  Here is what the SG (none other that now-SCOTUS-nominee Elena Kagan) says on this front:

No provision in Section 3553(a) prohibits a court from considering at resentencing a defendant’s efforts at rehabilitation undertaken after his initial sentencing. On the contrary, Section 3553(a) specifically instructs sentencing courts to consider “the history and characteristics of the defendant.” 18 U.S.C. 3553(a)(1).  That phrase encompasses a defendant’s rehabilitative efforts, whether they occur before or after his original sentencing. Consideration of a defendant’s rehabilitation after his original sentencing may also be relevant to “the need for the sentence imposed” on resentencing “to protect the public from further crimes of the defendant,” another Section 3553(a) factor.  18 U.S.C. 3553(a)(2).   Accordingly, the court of appeals erred in concluding that, under the advisory Guidelines regime, postsentencing rehabilitation is never a permissible factor to consider in varying downward under Section 3553(a) from the advisory Guidelines range.

The SG in the Pepper cert op goes on to suggest that a GVR rather than plenary review is all that is needed to correct the Eighth Circuit's error here.  But obviously, the Justices decided that it wanted to give Pepper plenary review.

June 28, 2010 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

"Nightmare of federal sentencing guidelines"

The title of this post is the headline of this new commentary by Bob Barr in the Atlanta Journal Constitution. Here are a few excerpts which highlight how Barr uses a recent high-profile white-collar sentencing to make his points about federal sentencing laws and practices:

Last week I was in Cedar Rapids, Iowa, where I attended a hearing in federal court at which a 50-year old man was sentenced to 27 years in federal prison –- in effect, a life sentence. The defendant, Sholom Rubashkin, is not a murderer, serial rapist or child molester; he is not a drug king pin and he did not bilk hundreds of innocent investors out of billions of dollars. Rubashkin is a first-time offender who was convicted late last year of a number of white-collar offenses stemming from his management of a large kosher slaughterhouse and meat packing plant. For this, he received what amounts to a life sentence.

While I did not represent Rubashkin at his trial, I will be assisting in the appeal of his case. Among the likely grounds for appeal are the 27-year sentence he received and the calculations by which the judge determined the length of that sentence. My purpose here has not to do with the case itself, but rather with how this one incident illustrates major flaws in how those who run afoul of any of more than 4,000 federal criminal laws, are sentenced. It ought to worry everyone....

What the average, non-lawyer citizen –- and perhaps even many lawyers who do not practice federal criminal law –- probably fails to realize, is that ... men and women found guilty of white collar crimes far less severe than a Bernie Madoff’s can be sentenced for crimes alleged by the government to have been committed, but for which they were found innocent or which were actually dropped by the government....

Most Americans understand that individuals cannot be forced to testify against themselves in criminal proceedings. What the public likely does not know, however, is that if a defendant elects to testify at his own trial and is subsequently convicted, the fact that he asserted his innocence can be used against him in order to increase his sentence.... In [addition], the government can manipulate or control the amount of a victim’s “loss” so as to permit a judge to then increase a defendant’s sentence.

These circumstances represent the tip of an iceberg that has long infected sentencing procedures in federal court; a system in which complex and, in many respects, arbitrary calculations of “sentencing guidelines” can result in punishments that are not only unfair but truly absurd. It is a system that cries out for reform.

Related posts on the Rubashkin case:

June 28, 2010 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (3) | TrackBack

Fourth Circuit opinion reverses sentence when district judge refused to consider acquitted drug conduct

A notable circuit sentencing opinion today from the Fourth Circuit in US v. Young, No. No. 08-4117 (4th Cir. June 28, 2010) (available here), provides a little twist on the usual circuit approval of sentencing consideration of acquitted conduct. Here is how the Young opinion starts and some key passages of its analysis:

Darnell Young was convicted of drug-related charges and received a within-Guidelines sentence of 136 months’ imprisonment. Young appeals his convictions and sentence, and the government cross-appeals the sentence imposed by the district court. We reject Young’s challenges, but we agree with the government that the district court erred when it concluded that the drug-quantity determinations made by the jury prevented the court from finding a different quantity at sentencing. Accordingly, we affirm Young’s convictions, vacate his sentence, and remand for resentencing....

By determining that the evidence presented at trial established that Young’s crimes involved between 500 grams but less than five kilograms of cocaine, the jury in this case effectively acquitted Young of involvement with the distribution of more than five kilograms.  The district court was free to consider, as it would with any other acquitted conduct, whether the government could establish a higher quantity under a preponderance of the evidence standard.

To the extent that Young suggests the government was estopped from establishing a higher drug quantity at sentencing because it elected not to present that evidence at trial, the argument is without merit. The government at sentencing properly sought to establish as relevant conduct the total quantity of drugs attributable to Young.  "Relevant conduct" under the Guidelines, of course, often includes a broader range of conduct than the conduct underlying the offense of conviction.  See, e.g., United States v. Newsome, 322 F.3d 328, 339 (4th Cir. 2003).  This is particularly so in drug cases, where relevant conduct is defined to include "all acts and omissions . . . that were part of the same course of conduct or common scheme or plan as the offense of conviction." U.S.S.G. § 1B1.3(a)(2).

The government’s decision to limit the evidence it presented at trial necessarily affected the jury’s drug-quantity determination, but that trial decision did not tie the hands of the government, or the district court, at sentencing.  There is no requirement that the government present its relevant conduct evidence at trial, nor is the district court at sentencing bound by the evidence presented at trial when determining drug quantity or other relevant conduct.

June 28, 2010 in Booker in the Circuits, Drug Offense Sentencing, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack

The likely state criminal litigation impact of McDonald and state applications of the Second Amendment

Even before having a chance to skim the Supreme Court's important McDonald ruling concerning the application of the Second Amendment to the states, I can already predict one of its likely (and most consequential?) impacts:  lots of state court litigation over state criminal laws concerning the possession and use of firearms. 

As regular readers of this blog know, the vast majority of persons who have sought to expand and extend the Supreme Court’s landmark Second Amendment ruling in Heller in the last two years have not been folks like Otis McDonald, the lead plaintiff in the case decided by the Supreme Court today.  Rather, the most common Second Amendment litigant has been a federal defendant charged with some form of gun possession crime. Though these litigants have not yet had much success when pressing claims that Heller precludes or impacts federal efforts to criminalize certain problematic uses and possession of firearms, they have forced lower federal courts to grapple with the reach and limits of Second Amendment rights in a variety of criminal justice settings. 

Now that the Supreme Court has clarified that the Second Amendment applies to the states, there are likely a significant number state criminal defendants who will now start urging state courts to decide that the Second Amendment should block some state prosecutions based on gun possession and use.  And the many divisions in the McDonald opinion probably ensures that lower courts will be divided when ruling on these issues.

June 28, 2010 in Second Amendment issues, Who Sentences? | Permalink | Comments (5) | TrackBack

SCOTUS takes up long-running federal sentencing case from Eighth Circuit

It appears that among the cert grants from the Supreme Court this morning is Pepper v. United States (docket here), which will call for a review of this Eighth Circuit opinion.  This Pepper case appears to have gone up and down the federal judicial ladder on sentencing issues for years, and it looks like Pepper might be a variation on the important Gall case from the Eighth Circuit that SCOTUS reversed a few years ago.  I will have a lot more on this important federal sentencing cert grant once I have a chance to review the particulars.

UPDATE:  Because the Eighth Circuit's most recent Pepper decision implicates so many issues, it is hard to even know how significant the SCOTUS cert grant in this case could prove to be.  That said, the case seems likely to provide the newer Justices with their most direct opportunity to express views on modern post-Booker federal sentencing realities.

June 28, 2010 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

SCOTUS decides Second Amendment applies to the states in 5-4 opinion

Here is the early report from SCOTUSblog on the long-anticipated McDonald Second Amendment incorporation decision:

Alito announces McDonald v. Chicago: reversed and remanded. Gun rights prevail.

The opinion concludes that the 14th Amendment does incorporate the Second Amendment right recognized in Heller to keep and bear arms in self defense.

Stevens dissents for himself. Breyer dissents, joined by Ginsburg and Sotomayor.

Here is more from the SCOTUSblog folks:

The majority seems divided, presumably on the precise standard.

The majority Justices do not support all parts of the Alito opinion, but all five agree that the 2d Amendment applies to state and local government.

Alito, in the part of the opinion joined by three Justices, concludes that the 2d Amendment is incorporated through the Due Process Clause. 

Thomas thinks the Amendment is incorporated, but not under Due Process. He appears to base incorporation on Privileges or Immunities.

The full opinion, which runs a full 214 pages, is available here.

June 28, 2010 in Second Amendment issues, Who Sentences? | Permalink | Comments (1) | TrackBack

June 27, 2010

Conceiving compelling criminal justice questions for the Kagan confirmation hearings

It is always possible that some folks involved in the Kagan confirmation hearing might sometime check out this blog, and it is certainly likely these folks have not given too much time or attention to criminal justice issues because Elena Kagan's record is so spartan on crime and punishment matters.  For these reasons (and others), I hope readers might use this post as a forum for proposing compelling criminal justice questions for the Senators on the Judiciary Committee to ask during the Kagan confirmation hearings. 

Here are a half-dozen of the hundreds of criminal justice questions I would love to see asked of Kagan in light of some of the Supreme Court's recent criminal justice jurisprudence and her recent work as Solicitor General:

1.  Do you think the Supreme Court could and should take and decide more cases on the merits, and do you think it would be especially appropriate to take up more criminal justice issues?

2.   Do you think it is useful and appropriate for the Court to decide a significant number of criminal justice cases through summary disposition without full briefing and argument (as the Roberts Court has tended to do in recent terms)?

3.   Do you think criminal justice administration should be primarily the responsibility of the states and/or do you have concerns about the ever-growing size of the federal criminal justice system?

4.  What are your current views of the pros and cons of the modern exclusionary rule?

5.  What are your current views of the pros and cons of the modern death penalty?

6.   What are your current views of the pros and cons of the advisory federal sentencing system created by the Supreme Court through its Booker ruling?

I am sure these questions could be refined, and I am sure there are lots of others worth asking Kagan.  As we all gear up for the hearing, I hope readers might share their thoughts about good questions.

June 27, 2010 in Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

"Juvenile Life Without Parole (JLWOP): An Antidote to Congress’s One-Way Criminal Law Ratchet?"

The title of this post is the title of this forthcoming article by Scott Hechinger, which appears to be among the first major pieces of scholarship seeking to take stock of the LWOP landscape in the wake of the Supreme Court's Graham decision. As the abstract reveals, the piece also has some interesting things to say about how Congress deals with sentencing issues:

Despite Justice Kennedy’s implicit approval of life-without-parole sentences for crimes committed before the age of 18 (“JLWOP”) in Roper v. Simmons, the issue of JLWOP has since generated a wave of attention and advocacy from scholars, bloggers, and journalists, human rights organizations, state legislatures, and international bodies, victims and children’s rights groups, and federal and state courts.  Symbolic of, and perhaps in reaction to, the increased momentum of the JLWOP debate post-Roper, the Supreme Court granted review of the constitutionally of JLWOP for non-homicides in Sullivan v. Florida and Graham v. Floridawith the court ultimately barring JLWOP for non-homicide crimes in Graham. However, nearly 93% (over 2300) of the JWLOPers are incarcerated for homicide and their sentences remain unaffected.

In the post GrahamJLWOP legal landscape, the critical question now is: what next? This article will seek to provide an answer.

Given Congress’s virtually non-existent history of “leniency legislation,” it is not at all surprising that scant advocacy and scholarly attention has focused on the potential for Congressional action on the issue of JLWOP.  Those familiar with federal criminal legislation have serious cause to doubt federal intervention in this field. This article, however, will argue there are significant reasons to believe JLWOP can and very well might be the issue to buck the timeless “one-way ratchet” of federal criminal law legislation.

Congress has already moved on the issue of JLWOP.  The Juvenile Justice Accountability and Improvement Act (“JJAIA”) — introduced in the House of Representatives in 2007 and again in 2009 — proposes to use Congress's spending power to condition federal funds allocated for crime control on states allowing for meaningful parole or supervised release opportunities for individuals convicted of crimes committed before the age of eighteen.  While the legislation has yielded two substantively rich hearings, and some advocacy attention, neither bill has made it out of committee, though the sponsors plan to reintroduce it and continue to do so until it is passed.

The quicksand in which the JJAIA is currently mired is rooted in the same, considerable obstacles facing any Congressional attempt at leniency legislation.  First, there is an entrenched political process bias against leniency legislation in Congress grounded in the fear of appearing “soft on crime,” the perception — both real and perceived — that public opinion opposes leniency, and the existence of vast inequalities in interest group power. Second, whether for political cover or out of legitimate Constitutional concern, federalism costs associated with federal intrusion into the state’s traditional control over crime and punishment disincentivize Congressional action.

This article will use the JJAIA and the issue of JLWOP to evaluate and respond to these classic obstacles to federal leniency legislation.  I will argue first, that the political process bias that has doomed leniency legislation in the past is actually far weaker in the context of JLWOP.  Second, I will ultimately conclude that the passage of the JJAIA is both necessary and proper and Congress’s federalism concerns are overstated in the context of JLWOP.

Whether or not Congress will actually act to pass the JJAIA is not a question I can possibly answer nor one on which I will focus.  Assuming the status quo of Congressional reluctance and advocate skepticism, Congress will probably not pass this legislation, at least not in the near future. This paper will also not advocate for the abolition of JLWOP.  The goal of this paper is far more modest.  The aim is to highlight for criminal justice reformists the potential for Congress to pass smart criminal law legislation and to illustrate to Congressmen and women that ending JLWOP will neither be political suicide nor sound the death knell of federalism, as we know it.

June 27, 2010 in Assessing Graham and its aftermath, Scope of Imprisonment, Who Sentences? | Permalink | Comments (11) | TrackBack