July 13, 2010
Split en banc Seventh Circuit in Skoien upholds categorical exclusion of DV misdemeanant from Second Amendment
Regular readers and Second Amendment junkies may recall the Skoien case in which a Seventh Circuit panel suggested that the Second Amendment may not permit the federal categorical prohibition on the possession of guns by persons previously convicted of a domestic violence misdemeanor. The full Seventh Circuit took the case up en banc, and today it reverses course via this opinion by Chief Judge Easterbrook.
Both Chief Judge Easterbrook's majority opinion and Judge Sykes' lengthy dissent have lots and lots of very interesting and important passages concerning the natures, scope and future of Second Amendment jurisprudence. Also, both opinions include lots and lots of cites to leading post-Heller scholarship. In short, this is a must-read and a case that is definitely worth continuing to watch not only if/when the defendant seeks SCOTUS cert review, but also to see if the usual gun right groups will express concerns with some of the pro-gun-restriction language that Chief Judge Easterbrook's opinion now makes the law of the Seventh Circuit.
Indeed, given the on-going debate over the state and fate of Chicago's new gun regulations after McDonald, I think Skoien (the opinion, not the defendant) is now going to be Chicago Mayor Richard Daley's best friend.
A few related Second Amendment posts on Skoien and Chicago gun laws:
- Puzzling through the doctrine and dicta of McDonald on the Second Amendment's limits
- Chicago's gun control response to the McDonald ruling
- Second Amendment lawsuit already filed against new Chicago gun regulations
- Seventh Circuit gives a little life to Heller challenge to prohibition on DV misdemeanant gun possession
- Fourth Circuit (unpublished!?) opinion follows Skoien on Heller challenge to § 922(g)(9) ... just after Seventh Circuit vacates it
- Eleventh Circuit rejects Second Amendment challenge to federal conviction for misdemeanant firearm possession
- SCOTUS undercuts constitutional gun rights in Hayes without even mentioning Heller or Second Amendment
- Given Hayes, can jurisdictions criminalize gun possession by any misdemeanant?
- The lack of originalist justification for excluding felons from the Second Amendment
- Assailing the unjustified Second Amendment limits in Heller
Ohio completes another one-drug lethal injection execution (with a slight hiccup)As detailed in this local article, which is headlined "Killer of 5 children is executed; Garner had set fire to cover up burglary in Cincinnati," Ohio continues to find success with its one-drug lethal injection execution protocol. But, intriguingly, it appears that today's Ohio execution had a little hiccup:
A Cincinnati man who set an apartment fire that snuffed out the lives of five children was executed this morning. William L. Garner, 37, was lethally injected at 10:38 a.m. at the Southern Ohio Correctional Facility near Lucasville.
"To the state of Ohio, thank you, I'm free," Garner said, reading from a three-page, handwritten statement. "Thank God Almighty, I'm free now."
However, the execution concluded with an unusual element: The curtain was pulled to obscure Garner from witnesses for nearly 10 minutes before he was declared dead. Ernie L. Moore, director of the state prison system, said authorities thought they heard "faint heart sounds" and decided to wait for five minutes behind the closed curtain.
Rod Mack, the lone survivor of the Jan. 26, 1992, smoky blaze at 1969 Knob Ct. in Cincinnati, was one of nine witnesses who watched Garner's execution. Because there were so many witnesses, some watched in person in the Death House, while others saw him die on closed-circuit television in a nearby room at the prison....
Gov. Ted Strickland last night refused to use his clemency power to spare Garner's life. The Ohio Parole Board voted 7-0 against clemency, concluding that he "knowingly murdered five children in selfish greed."...
He was the sixth Ohioan executed this year and the 39th since capital punishment resumed in 1999.
"Beyond Guns: N.R.A. Expands Agenda"The title of this post is the headline of this interesting article in today's New York Times concerning how the National Rifle Association is planning to continue pushing for broader gun rights in the wake of the Second Amendment rulings in Heller and McDonald. Here are snippets:
Fresh off a string of victories in the courts and Congress, the National Rifle Association is flexing political muscle outside its normal domain, with both Democrats and Republicans courting its favor and avoiding its wrath on issues that sometimes seem to have little to do with guns....
The N.R.A.’s expanding portfolio is an outgrowth of its success in the courts, Congressional officials and political analysts said. With the Supreme Court ruling last month for the second time since 2008 that the Second Amendment guarantees an individual the right to have a gun, the N.R.A. now finds that its defining battle is a matter of settled law, and it has the resources to expand into other areas.
When the N.R.A. had a narrower range of targets, it relied on a core group of political figures and met with stiffer resistance from vocal gun control advocates in Congress and outside groups. It now has freer rein to leave its mark politically on issues that once seemed out of its reach....
N.R.A. officials say they are determined to protect gun rights even if it means using the group’s $307 million budget and membership of more than four million gun owners to influence ancillary issues. “What you’re seeing is a recognition that support for the Second Amendment is not only a very powerful voting bloc, but a very powerful political force.” Chris W. Cox, the N.R.A.’s chief lobbyist, said in an interview last week at the group’s Washington office, a few blocks from the Capitol....
But the group’s muscle has generated tensions with some gun owners themselves, who do not like the idea of the N.R.A. straying into areas outside its core base and aligning itself with Democrats as it broadens its agenda.
The headline on a recent blog post from a rival faction, the Gun Owners of America, singling out the N.R.A.’s exemption from the campaign finance bill, captured the sentiment: “The N.R.A. Sells out Freedom to the Democrats.”
A point of contention on both the left and the right is the N.R.A.’s close working relationship with Mr. Reid, the Senate leader who helped get a number of pro-gun rights measures included in broader bills.
That relationship has led some gun rights supporters to lobby against the idea that the N.R.A. might endorse Mr. Reid in his tough re-election campaign this November in Nevada. The N.R.A. is not tamping down speculation. While Mr. Cox said the group had not decided on any endorsements, he pointed to what he considered an unattractive alternative if Mr. Reid loses and the Democrats hold power. “I’ll give you four words: Majority Leader Chuck Schumer,” he said.
July 13, 2010 in Elections and sentencing issues in political debates, Second Amendment issues | Permalink | Comments (1) | TrackBack
Wasn't pre-Booker federal sentencing an "ongoing source of discord, disunity, and criticism"?There are so many intriguing aspects of the letter sent last month by the Justice Department's Criminal Division to the US Sentencing Commission (basics here), and I am still reflecting on DOJ's current assessment and criticism of 2010 post-Bookerrealities. But, upon my first re-read of the DOJ letter, this introductory paragraph jumped out at me:
[W]e think the existence of these dichotomous regimes [with some judges regularly sentencing within the guidelines and others frequently sentencing outside the guidelines] will, over time, breed disrespect for the federal courts. Trust and confidence in the criminal justice system is critical to successfully bringing justice to all and keeping crime rates low. To the extent that federal sentencing is an ongoing source of discord, disunity, and criticism, the reputation of the federal courts will be seriously damaged and the effectiveness of federal criminal justice will be compromised.
I do not disagree with any of the sentiments in this paragraph, but it seems to incorporate an implicit assertion that all was well with federal sentencing law and practice before Booker five years ago transformed the guidelines from rigid mandates into general advice. As the question in the title to this post spotlights, in my view, federal sentencing before Booker was "an ongoing source of discord, disunity, and criticism" and that reality seriously damaged the reputation of federal courts and the effectiveness of federal criminal justice. Indeed, I think it fair to assert that the amount of discord and criticism of the federal sentencing system has been reduced by Booker, though arguably the amount of disunity may be increasing.
The broader issue that the DOJ letter and this post raises concerns the appropriate benchmark for assessing and criticizing modern post-Booker federal sentencing realities. There are clearly many problems with the current advisory federal sentencing regime. But I continue to believe that most of these problems are generally less bad now than they were before Booker --- though the current problems may now be more transparant and irksome (especially to prosecutors who generally see increase judicial discretion being used to reduce sentence lengths relative to the guidelines). Moreover, the fact that a lot of the problems with federal sentencing are now more transparant after Booker serves itself as a mark in Booker's favor because problems that are easier to see are generally easier to fix.
July 12, 2010
Lindsay Lohan's latest struggle: finding a lawyer willing to take on her criminal caseThis post from TalkLeft altered me to this fascinating new report from People Magazine headlined "Lawyer: Lindsay Lohan Just Doesn't Get It." Here are excerpts:
A 90-day jail sentence should be a wake-up call for Lindsay Lohan but she still isn't fully aware of her dire situation, according to a lawyer who sat down with the actress over the weekend.
"My impression of Lindsay is that she's a fragile lost child – a sleeping beauty with her head in the sand. I found her not fully forewarned of the consequence of her actions," Stuart V. Goldberg, who was contacted by Lohan after her attorney resigned, tells PEOPLE.
"I'm concerned that she's not disciplined or tethered enough to the reality of adult consequences," he says. "She doesn't seem to have the awareness of what's going to befall her."
Goldberg, a criminal defense attorney based in Chicago, says he met with Lohan, her mom Dina and younger sister Ali at the actress's West Hollywood apartment and outlined his requirements for representing her – "100 percent loyalty and zero tolerance for dishonesty" – but "they didn't seem to understand the urgency and gravity of the situation." He ultimately declined to take on the case.
During their six-hour long "heart to heart conversation," Lohan, 24, took notes like she did in court, writing in the triangular corner of a piece of paper, while Ali asked him "astute" questions....
And though he advised Lohan to move out of Los Angeles, which he described as a "toxic environment for her," the actress didn't seem open to the idea. "She was like Teflon to that comment," he says. "It just slid right off her. She seemed to have some inner deep sadness that that was her fate."
"My real worry for her is not just the jail time," adds Goldberg, "but my fear is that she's overly susceptible to a probation system that's set up for her to fail."
I suspect that more that a few readers of this blog are familiar with less-than-ideal meetings with potential clients. I would be interested to hear reactions to Stuart Goldberg's (astute?) decision to decline taking Lohan as a client, and well as to Goldberg's suggestion that Lohan is now to be subject to a "probation system that's set up for her to fail."
Sixth Circuit rejects effort by Ohio murderer to extend Roper to block executionOhio's now-standard monthly execution plans today produced this interesting little opinion from the Sixth Circuit in an order denying a stay application. The order starts this way:
Petitioner William Garner, an Ohio inmate sentenced to death, moves this court to stay his impending execution, which is scheduled for July 13, 2010, at 10:00 a.m. Garner bases the stay motion on his application for permission to file a second or successive habeas petition, an earlier petition having been fully litigated and ultimately denied. His petition is based on Roper v. Simmons, 543 U.S. 551 (2005), the Supreme Court’s holding that the death penalty may not be imposed for crimes committed by someone under 18 years of age. Garner was 19 years old at the time of the crime, but his counsel urge that Roper extends to adults whose mental age is that of a juvenile. Roper was decided five years before Garner’s counsel brought this claim to the state courts for the first time. We deny the motion to stay.
Swiss justice ministry formally refuses US extradition request for Roman PolanskiI happen to be off-line for most of the day, and the Swiss let an (in)famous sex offender go free. This article from The Guardian, which is headlined "Roman Polanski escapes extradition to US: Film director goes free after nine months under house arrest in Switzerland," provides the basic details:
Roman Polanski, the film director who has been under house arrest in Switzerland for the past nine months, has been declared a free man after officials decided not to extradite him to the United States.
The Swiss justice ministry said it had decided against handing the fugitive director to the US, where he is wanted for sentencing for having sex with a 13-year-old girl 33 years ago.
"The Swiss justice ministry will not extradite Roman Polanski to the United States," Eveline Widner-Schlumpf, a ministry official said at a press conference in Bern. "The Franco-Polish film-maker will not be extradited to the United States, and the measures of restriction on his liberty have been lifted."
She said national interests had been considered before the decision was made, adding: "Polanski is now a free man." Polanski was arrested on a US warrant last year while in Zurich to collect a lifetime achievement award for his film work. He was kept under house arrest at his Swiss chalet in the mountain resort of Gstaad.
He will now be able to move beyond his garden for the first time. An electronic tag has been removed from his ankle. The Swiss decision is likely to cause diplomatic tensions between Switzerland and the US.
Widner-Schlumpf added: "The reason for the decision lies in the fact that it was not possible to exclude with the necessary certainty a fault in the US extraditionary request."
The Los Angeles Times has this blog report with a title that sums up the official reaction to the Swiss ministry ruling: "Roman Polanski freeing meets with outrage from prosecutors, U.S. State Department."
July 11, 2010
Fascinating assessment of federal sentencing in DOJ annual letter to US Sentencing CommissionA very kind reader sent me a copy of the letter sent by the Justice Department's Criminal Division to the US Sentencing Commission commenting on the operation of the federal sentencing guidelines. This letter can be downloaded below, and here is the letter general assessment of post-Booker realities:
More than five years after the Supreme Court's decision in Booker v. United States, 543 U.S. 220 (2005), Sentencing Commission data — and our prosecutors' experience in federal courts across the country — suggest that federal sentencing practice is fragmenting into at least two distinct and very different sentencing regimes. On the one hand, there is the federal sentencing regime that remains closely tied to the sentencing guidelines. This regime includes the cases sentenced by federal judges who continue to impose sentences within the applicable guideline range for most offenders and most offenses. It also includes cases involving crimes for which sentences are largely determined by mandatory minimum sentencing statutes. These crimes include many drug trafficking offenses and certain violent and gun offenses.
On the other hand, there is a second regime that has largely lost its moorings to the sentencing guidelines. This significant set of criminal cases includes those sentenced by judges who regularly impose sentences outside the applicable guideline range irrespective of offense type or nature of the offender. It also includes cases involving certain offense types for which the guidelines have lost the respect of a large number of judges. These ooffense types include some child pornography crimes and some fraud crimes, including certain frauds involving high loss amounts.
We are concerned by this evolution of federal sentencing into two separate regimes for several reasons. First, we think it leads to unwarranted sentencing disparities. More and more, we are receiving reports from our prosecutors that in many federal courts, a defendant's sentence will largely be determined by the judicial assignment of the case; i.e. which judge in the courthouse will conduct the sentencing. Scholarly studies are now beginning to reinforce these reports. This is extremely problematic. In our consideration of federal sentencing policy, we begin from the principle that offenders who commit similar offenses and have similar criminal histories should be sentenced similarly. This was the foundational principle of the Sentencing Reform Act of 1984. We are concerned that our sentencing system may be meeting this principle of sentencing reform less and less.
Second, we think the existence of these dichotomous regimes will, over time, breed disrespect for the federal courts. Trust and confidence in the criminal justice system is critical to successfully bringing justice to all and keeping crime rates low. To the extent that federal sentencing is an ongoing source of discord, disunity, and criticism, the reputation of the federal courts will be seriously damaged and the effectiveness of federal criminal justice willl be compromised.
Third, we think certainty in sentencing is critical to reducing crime rates further and deterring future criminal conduct, but the current trends are towards less certainty. We have experienced dramatic reductions in crime rates over the past 20 years, and our collective goal should be to continue on this path in the most just way possible for years to come. The Sentencing Commission has an important role to play, and it includes ensuring that both certainty of punishment and equal justice in sentencing are achieved by the federal courts.
For all these reasons and more, we believe the Commission, in the 2010-2011 amendment year, should prepare a comprehensive report on the state of federal sentencing that rèviews these issues and concerns. While we applaud the Commission for its continuing and valuable data releases over the last five years, we are disappointed that there has been no systemic analysis of federal sentencing since the Final Report on the Impact of United States v. Booker on Federal Sentencing, released in March 2006. Since that Report, Commission data have revealed troubling sentencing trends emerging across the country where, for example, certain districts are experiencing substantially higher departure and variance rates — and other districts substantially lower rates — than the national average. Federal sentencing has undergone a series of constitutional shocks, the full ramifications of which the Commission ought to explore and report. The Commission's regional hearings and data releases have been important contributions to all those concerned about the impact of Booker on federal sentencing policy and practice. But we think more is needed.
We continue to urge the Commission to explore new ways of analyzing federal sentencing data in order to understand federal sentencing outcomes better, identify any unwarranted sentencing disparities, and determine whether the purposes of sentencing are being met. But most importantly, we urge the Commission to synthesize all of the information it has collected and to issue a report on the state of federal sentencing. We think the report should also layout a way forward to address systemic concerns and ensure that the principles of sentencing reform — predictability, elimination of unwarranted disparity, and justice — are achieved. Going forward, the Commission should explore how to create a single sentencing regime that will earn the respect of the vast majority of judges, prosecutors, defense attorneys, Members of Congress, probation officers, and the public.
We also believe the Commission should conduct a review of — and consider amendments to — those guidelines that have lost the backing of a large part of the judiciary. These reviews should begin with the guidelines for child pornography possession offenses and fraud offenses.
Pennsylvania sentencing commission urging repeal of school zone mandatory sentencing provisionsAs detailed in this local article, the Pennsylvania Commission on Sentencing is"is recommending that legislators repeal the drug-free school zone mandatory sentences and let judges to determine the sentence based on already-existing guidelines that would include increased time." Here are more details:
The commission said mandatory sentences are used inconsistently across the state, said Mark Bergstrom, executive director of the commission. Some district attorneys invoke it every time. Others rarely use it, he said.
In addition, there's no required link between the drug deals and the school zone, Bergstrom said. The zone extends 1,000 feet from the edge of the school property, so it includes people living blocks away.
York County District Attorney Tom Kearney said his office determineswhether to invoke the mandatory sentence based on the facts of the case. It's a tool in his arsenal that he likes to have....
"I like the flexibility the legislation has provided to me," he said. "What we want to get are the bad guys." However, Kearney said he can understand the concern about the lack of consistency in the use of drug-free school zone mandatory sentences across the state....
In general, legislators will need to address mandatory minimum sentences for first-time, non-violent offenders because the state prison population keeps going up while crime has been decreasing, state Rep. Eugene DePasquale, D-West Manchester, said. However, he cautions against lessening any offense in a school zone because it puts children in danger....
Two local defense attorneys ... said the mandatory minimum drug-free school zone sentences can be unfair, and they hope the legislature will repeal it. "It just takes too much power away from the judge," defense attorney Richard Robinson said....
Defense attorney Christopher Ferro said he agrees that it takes the discretion out of a judge's hands to judge each defendant on the merits of the facts. It's an arbitrary distinction of where the school zone is, and it doesn't really take into account whether there were minors involved. "It's justice by tape measure, which makes no sense," he said.
One of the most unfair aspects is that the law disproportionately affects defendants in urban areas because of the number of school buildings. "It's almost impossible to go anywhere in York City, and you're not in a drug-free school zone," he said.