August 28, 2010
Pennsylvania still trying to decide how to implement AtkinsThis local article details that, nearly a decade after the SCOTUS Atkins decision making mentally retarded defendants ineligible for execution, Pennsylvania is still trying to decide how to implement the ruling. The piece is headlined "Should a jury or judge determine whether a murderer is mentally retarded?," and here are excerpts:
Eight years ago, the U.S. Supreme Court ruled that a murderer who is mentally retarded cannot face the death penalty because it's cruel and unusual punishment. But the ruling allowed states to decide how to handle such cases, and in Pennsylvania, officials are still debating whether a judge or a jury should determine whether a defendant is mentally retarded.
State senators voted 45-2 last year in favor of a bill that would allow a judge to determine whether a defendant is mentally retarded before a trial begins. The House Judiciary Committee is now debating the issue.
In the community, prosecutors, defense attorneys and advocates for the mentally disabled differ on whose role it is to make the call. Some cite financial concerns as part of their argument. Local defense attorney Jeffrey Marshall, who is certified to handle death-penalty cases,
said he sees it as an eligibility issue and thinks a judge should make the decision before trial. It's similar to a judge determining whether a defendant is competent to stand trial. "I see it as a separate issue," Marshall said.
Otherwise, a jury would have to make the determination after the defendant is found guilty of first-degree murder. He questioned whether the jury would have a separate hearing on the issue before considering the aggravating and mitigating circumstances for the death penalty phase....
Others, however, think a jury should determine whether a murderer is mentally retarded. The Pennsylvania District Attorneys Association is one. "We have a strong tradition in Pennsylvania in putting our faith in juries, and they have served us well for over 200 years," executive director Richard Long said.
Juries listen to the evidence and make difficult decisions -- including whether a defendant is guilty -- and they do it well, he said. It's an "elitist move" to say that a jury is not capable of coming to a proper decision, Long said.
Of course, as highlighted in this AP article, which is headlined "Pa.'s death penalty exists in name only," it is not clear whether any Pennsylvania capital defendant will face the prospect of execution anytime soon.
Paris Hilton perhaps facing hard time after arrest in Nevada for cocaine possessionThanks to Paris Hilton, we now have a party girl successor to Lindsay Lohan in another criminal justice tangle to follow on this blog. Here are the details via this new CBS News story:
Celebrity heiress Paris Hilton was arrested Friday night and booked into the Clark County Detention Center for possession of a controlled substance, described by Las Vegas Metro Police as cocaine. CBS News legal analyst Lisa Bloom says a conviciton would probably mean more time behind bars for Hilton.
She was a passenger in a car when Metro conducted a traffic stop around 11:30 p.m. Friday in front of the Wynn Hotel and Casino on the famed Las Vegas Strip, according to Officer Marcus Martin, public information officer, who spoke with CBS affiliate KLAS-TV.
During the course of the traffic stop, police say, they conducted a search and found an undisclosed amount of cocaine in Hilton's purse. An officer indicated to KLAS that a possible odor of marijuana was initially detected, requiring further interaction with police.
Hilton was charged with possession of a controlled substance. A clerk at the Clark County Detention Center indicated early Saturday morning that Hilton "had been booked and released." Further details were not available from the jail....
Hilton was arrested this summer after the Brazil-Netherlands World Cup match in Port Elizabeth, South Africa, on suspicion of possession of marijuana. The case was then dropped at a midnight court hearing.
Hilton also pleaded no contest in 2007 to alcohol-related reckless driving and was sentenced to 45 days in jail. After spending about 23 days in jail, Hilton told U.S. television host Larry King that the experience caused her to re-evaluate the role partying played in her life. She said she wanted "to help raise money for kids and for breast cancer and multiple sclerosis."
Lisa Bloom told "Early Show on Saturday Morning" co-anchor Chris Wragge she thinks Hilton is "probably" staring at more jail time if she's convicted. "In Nevada," Bloom explained, "the sentence for a conviction of a Schedule 2 narcotic, which is what cocaine is, is probation-to-four years if it's a relatively small amount. If it's a larger amount, four grams or more, it could be up to 20 years in state prison. Assuming it's a small amount, I don't think she would get probation this time. ... She has a prior conviction in California. We remember the reckless endangerment charge. And she violated her probation twice in California. So, if she's convicted, I expect her to do some time on this."
"Nevada is a cvery tough law and order state, notwithstanding Las Vegas' reputation. Judges are very tough there on drug crimes," Bloom added.... Not only that, said Bloom, but, "Judges do not want to appear soft on a celebrity. We saw that with Lindsay Lohan going to jail, and now we're gonna see that with Paris Hilton (if she's convicted)."
"Anesthesia shortage may delay executions"The title of this post is the headline of this new USA Today piece. Here are excerpts:
A nationwide shortage of several anesthesia drugs has left several states scrambling to find enough doses to carry out lethal injections — potentially delaying executions well into next year.
Kentucky announced this week that it would not be able to carry out two executions, despite pending death warrants, because the state has only enough sodium thiopental, also known as Pentothal, to perform a single lethal injection. "We have reached out to some other states, but that has not been fruitful," said J. Michael Brown, secretary of the Justice and Public Safety Cabinet. "We've had other states call us trying to find it."
Oklahoma has also been forced to delay an execution after a federal judge said a hearing needs to be held before the state could substitute a drug for the state's remaining dose of sodium thiopental. That dose "wasn't at the quality we wanted," said Jerry Massie, a spokesman for the state Department of Corrections.
Ohio prison officials have been closely watching the nationwide shortage after they feared they may not be able to carry out a lethal injection last spring because of limited supplies, according to Ohio corrections spokeswoman Julie Walburn.
Hospira, based outside Chicago, the sole U.S. manufacturer of sodium thiopental, says manufacturing problems have hindered production of the drug, though spokesman Dan Rosenberg declined to elaborate. "We are working to get it back on the market as soon as possible," Rosenberg said.
Rosenberg said Hospira won't have more of the drug available until sometime in the first quarter of 2011....
Of the 35 states that allow the death penalty, nearly all use sodium thiopental as part of the lethal cocktail administered, according to the Death Penalty Information Center. New Mexico voted to abolish the death penalty in 2009, but the repeal was not retroactive, leaving two people on the state's death row, according to the Center's Web page. Both Ohio and Washington use a one-drug protocol using the sodium thiopental.
August 27, 2010
Second Circuit holds Apprendi precludes increased fine based on judicial fact-findingToday the Second Circuit handed down an interesting Apprendi decision in US v. Pfaff, No. 09-1702 (2d Cir. Aug. 27, 2010) (available here), a case which, as the Pfaff panel notes, has been called "the largest criminal tax case in American history." Perhaps size really does matter, because this big case produces a notable per curiam ruling which starts this way:
Defendants-Appellants Robert Pfaff, Raymond J. Ruble, and John Larson appeal from judgments of conviction, and Larson from his sentence, entered in the United States District Court for the Southern District of New York (Kaplan, J.). Following a ten-week jury trial, Appellants were convicted of tax evasion for designing, implementing, and marketing fraudulent tax shelters.
In a separate summary order filed today, we AFFIRM the Appellants’ convictions as well as Larson’s term of imprisonment, the only term challenged on appeal. Here, we address a single question: whether the district court plainly erred by fining Larson $6 million, pursuant to 18 U.S.C. § 3571(d), based on the court’s finding that Larson caused a pecuniary loss in excess of $100 million, when the maximum fine absent such a finding would have been $3 million, pursuant to 18 U.S.C. § 3571(b)(3). We hold that the district court’s fine violated Apprendi v. New Jersey, 530 U.S. 466 (2000), and that it constituted plain error. Therefore, we VACATE and REMAND for the district court to reconsider Larson’s fine.
Animal abuser registry proposed by county lawmaker in New YorkThis local story reports on a novel proposal to expand the use of criminal registries to animal abusers. The piece is headlined "Suffolk law would place animal abusers on registry: Public could access names, photos of those convicted," and starts this way:
A county lawmaker is looking to create a public registry of convicted animal abusers in a move that would make Suffolk County the first municipality in the nation to create such a list to shame abusers and prevent them from adopting animals....
If passed, the names, aliases, addresses and photographs of animal abusers would compiled in a searchable database, much like the state's sex offender registry.
The convicted abusers would pay a $50 annual fee for upkeep of the registry, and those who fail to register would be charged $1,000 or face jail time. The bill would also require pet stores and animal shelters to check the registry before allowing anyone to purchase or adopt an animal, and would prohibit giving an animal to a convicted abuser.
Debate in Hawaii over how tough to get on drunk drivers who killThis local story from our 50th state, which is headlined "Prosecutors, defense attorneys spar over sentencing of deadly drivers," highlights that sentencing judges are sometimes inclined to give a break to drunk drivers even when they kill. Here are excerpts:
Honolulu prosecutors on Wednesday unsuccessfully sought a 15-year prison term for the driver responsible for a deadly crash in Mokuleia four years ago. It was the latest in a string of sentencing disappointments for them and the families of crash victims.
We've seen it many times now -- a tearful plea by a person whose loved one was killed in a crash involving drunken driving and/or excessive speeding. "I really wish you would think really hard on the sentence," Joyce Somera, victim's sister, told the judge at a sentencing Tuesday.
Often, a family's loss is compounded by a seemingly lenient sentence for the driver responsible. Keanan Tantog killed a person and injured another, and received probation and a one-year jail term.
Tyler Duarte took two lives, and was sentenced to probation and 18 months in jail. Billy Lamug -- who wasn't intoxicated but was excessively speeding -- killed two people and injured a third. He was sentenced to probation and community service.
"Each one of these families have lost somebody that they've loved forever," Douglas Chin, acting city prosecutor, said. "What's too bad is it seems like the court is more often taking into consideration what's happening for the defendant."
A judge sitting on a standard second-degree murder case has no discretion. It's a mandatory life sentence for that intentional killing. But in a vehicular homicide, whether negligent or reckless, a judge has discretion and must consider several factors, including the defendant's criminal history. If there's no prior record, the driver will likely sidestep the maximum prison term -- even if alcohol was involved in the deadly crash.
"In these cases, a judge is faced with a situation where a good person is dead, but a good person's life now also hangs in the balance," Victor Bakke, defense attorney, said. "The judge's job is not revenge."
"The argument that they've never done it before, it's never happened, doesn't hold much water with me because the fact is they've done it now," Sen. Sam Slom, Senate Judiciary Committee member, said. Slom says a decade ago, very few of these drivers went to jail at all. But since then, the laws have become tougher. In light of the recent sentences being handed down, he says the committee should revisit the issue next session.
August 26, 2010
Pepper providing a bit of spice to SCOTUS sentencing docket
Here at the National Law Journal, Marcia Coyle has a new piece on the Pepper federal sentencing case on the Supreme Court's docket for the upcoming term. The piece is headlined "Brief of the Week: Conflict over rehabilitation and resentencing," and here are excerpts:
The [Pepper] case offers the justices an opportunity to provide some guidance to sentencing judges about how much weight to give an offender's successful rehabilitation if he or she must be resentenced following appeals....
Pepper ... actually sought prison time in order to get into a 500-hour drug treatment program offered at a federal prison in Yankton, S.D. The judge sentenced him to 24 months in prison so he could qualify for the drug program. In 2005, he finished his prison sentence and began five years of supervised release.
In the meantime, however, the government appealed the 24-month sentence. In 2009, after three resentencing hearings, four reviews by the U.S. Court of Appeals for the 8th Circuit, another appeal by the government and an appeal by Pepper, Pepper was ordered back to prison by a different sentencing judge for an additional 41 months.
At the time of that last sentencing, Pepper had turned 29, had been married for two years to a woman with a 7-year-old daughter and was their primary support. He also was attending college full-time and was a Sam's Club overnight assistant manager who had been named associate of the year.
In Pepper's case, the 8th Circuit said, "We commend Pepper on the positive changes he has made in his life. However, the law of our circuit is clear. '[E]vidence of [a defendant]'s post-sentence rehabilitation is not relevant and will not be permitted at resentencing because the district court could not have considered that evidence at the time of the original sentencing.'"
Pepper's counsel, Alfredo Parrish of Kruidenier Dunn Boles Gribble Parrish Gentry & Fisher in Des Moines, Iowa, contends that the circuits are split on whether judges may consider post-sentencing rehabilitation in granting a downward departure from a guideline-recommended sentence....
Parrish relies in part on Gall v. U.S., a 2007 decision in which the justices rejected the 8th Circuit's policy that sentencing judges must justify downward departures with findings of extraordinary circumstances. The Gall case involved post-offense rehabilitation. "There appear to be hints in Gall that considering post-offense and post-sentencing rehabilitation in extraordinary circumstances is permissible at sentencing," Parrish said in his petition.
In a twist in the Supreme Court, the government now agrees with Pepper that post-sentencing rehabilitation is a factor to be considered. In its brief in opposition to Pepper's petition, then Solicitor General Elena Kagan wrote: "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.'"
The government had urged the court to vacate the 8th Circuit's judgment and remand the case for consideration of the government's latest views and recent case law. But the justices decided to hold arguments.
The justices appointed Adam Ciongoli, a former clerk to Justice Samuel Alito Jr. and now general counsel of Willis Group Holdings, to defend the 8th Circuit judgment.
And on July 22, the district judge who added the 41 months to Pepper's sentence — Chief Judge Linda Reade of the Northern District of Iowa — approved his release from prison pending the decision in the Supreme Court.
This is one of 11 cases from which now Justice Kagan has said she will recuse herself because of her involvement in the case. The Court has not scheduled arguments yet.
"Blagojevich: Focus on Sentencing, Not a Retrial"The title of this post is the headline of this intriguing commentary by attorney Lonna Saunders at the Huffington Post providing advice to US Attorney Patrick Fitzgerald. Here are excerpts:
Memo to US Attorney Patrick Fitzgerald: You won. Due to your legal team's efforts, former Illinois Governor Rod Blagojevich is a convicted felon. Remember how they got Al Capone, another Chicagoan? Not on racketeering nor on his mob-related activities. He was thrown in jail for his IRS woes.
Instead of preparing for a retrial, focus your time and talent on Blagojevich's sentencing hearing for lying to the FBI. That is where you should focus your efforts. That is what you should be discussing with Judge James Zagel-- a date for the sentencing hearing. It is not as sexy as some of the other counts, but it is the meat and potatoes of what your office does . And let's face it. The City of Big Shoulders, is a meat and potatoes type of town.
The entire nation has Blagojevich battle fatigue. We can't take it any more. Despite Blago's effing golden remark captured on the government's wiretaps of his conversations, President Barack Obama's US Senate seat was not sold to the highest bidder. For if it had been, Rod Blagojevich's campaign war chest would have been six million dollars richer. But it wasn't....
This isn't just one woman writer's humble opinion. It is a consensus of opinion from around the horn. It is rare to see the editorial boards of such politically disparate publications as The Wall Street Journal and The Washington Post, agree on anything. Yet after the Blagojevich jury verdict was announced, both papers editorialized that your office should skip a retrial even though it is your right to seek one. Ditto Republican consultant Mary Matalin and Democratic TV talker Roland Martin as well as political commentator David Gergen who has worked both sides of the aisle, most recently for the Clinton White House. All three were on CNN last week, opining against a retry of the Blagojevich brothers.
So, are you listening? To repeat. Mr. US Attorney, sir, you got what you sought. Rod Blagojevich is now a convicted felon. You won.
On behalf of the people of the state of Illinos and the nation, let's put our money and mouthpiece on the penalty phase. Will Blago serve time in prison? If so, at which facility? For how long? Will he pay a fine? How much? Will he be required to do community service? What and for how long? Will he be required to make restitution? Will he be confined to his home with an ankle bracelet? Will he get to keep his hair or be forced to trim it? Just kidding on that last one. But for a guy who spent thousands on a single business suit, the mere thought of having to wear an orange jumpsuit every day, could be punishment enough. OK, just kidding on that one, too....
Let's move forward, US Attorney Patrick Fitzgerald, and spend the public's limited tax dollars and limited resources on catching some other bad guys. You did what you said you would do. Another former governor is a convicted felon. Hey, maybe George Ryan and Blago could even share a cell together. Stranger things have happened.
Please accept the jury's verdict and move on. Thank you for your consideration.
In related news, this AP story reports that only one of the Blago brothers is facing a retrial after a court hearing today: "Former Illinois Gov. Rod Blagojevich is set to go back on trial in early January, but he will stand alone as a defendant this time after prosecutors dismissed all corruption charges against his brother on Thursday. U.S. District Court Judge James Zagel said Rod Blagojevich's retrial will start the week of Jan. 4, but he did not set a specific date."
Does everyone agree that USA Fitzgerald ought to forget about a retrial? Does anyone think that forcing Rod Blagojevich to shave his head and to go on a reality shown with an ankle bracelet might be a fitting shaming sanction?
Two long and notable Eighth Circuit sentencing opinions
One hallmark of the Eighth Circuit's sentencing work is its tendency to produce short and sweet (and usually pro-government) opinions. For this reason, in addition to the substantive analysis, two lengthy (and divided) opinions handed down today seem especially noteworthy. Here are unofficial summaries of the rulings (with links) from the Eighth Circuit's website:
United States v. Durham, No. 09-2951 (8th Cir. Aug. 26, 2010) (available here):
The court erred in applying a two-level enhancement for distribution of child pornography under Guidelines Sec. 2G2.2(b)(3)(F) as the court erred in finding defendant was knowledgeable about the Limewire file-sharing software and that he knowingly used the program to distribute child pornography; on remand, the court should consider whether the record supports imposition of an enhancement under Guidelines Sec. 2G2.2(b)(1); no error in imposing special conditions of supervised release which allow the probation office to track defendant's whereabouts, prevent his access to child pornography and limit his other access to the Internet; Judge Beam, concurring in part and dissenting in part. Judge Gruender, concurring in part and dissenting in part. (Judge Gruender's opinion announces the judgment of the court with respect to imposition of the condition limiting Internet access.)
United States v. Anderson., No. 09-1733 (8th Cir. Aug. 26, 2010) (available here):
District court did not in imposing an enhancement under Guidelines Sec. 2D1.1(b)(1) for possession of a firearm in connection with the drug offense; sentence was not unreasonable. Judge Kornmann, concurring.
Notable plans (and materials) from the US Sentencing Commission
The homepage of the website of the US Sentencing Commission now has up these two interesting new items and links:
Hard-core federal sentencing fans will find a lot of interest behind the link of this first item, and it provides additional links to various materials set to the US Sentencing Commissions on topics ranging from Booker to mandatory minimums to child pornography sentencing. And the public meeting agenda indicates that the USSC next week will not only vote on "Adoption of Policy Priorities for 2010-2011," but also will consider "Possible Vote on Publication of Issues for Comment related to the Fair Sentencing Act of 2010."
In memoriam: William B. SaxbeFor the last five years, I have had the great honor of having a great man's name in my title, as I have served as the William B. Saxbe Designated Professor of Law at The Ohio State University Moritz College of Law. Earlier this week, Attorney General (and Senator and Speaker and Ambassador) Saxbe passed away, and this obituary in the Columbus Dispatch highlights just some of the many reason I remain proud to have this accomplished man's name in my professional title:
William B. Saxbe, a plain-spoken, tobacco-chewing U.S. senator from Ohio who brought a hint of stability to the Nixon administration during the darkest months of the Watergate scandal, died yesterday. He was 94.
Saxbe, a one-term senator whom President Richard M. Nixon appointed U.S. attorney general during the height of Watergate in 1973, died at his home in Mechanicsburg, northwest of Columbus....
An atypical politician, Saxbe used salty language, made spur-of-the-moment decisions and alienated some by blurting out colorful quotes. But he also was admired by many for saying what was on his mind.
Regarded as a moderate-to-liberal Republican, he had little use for political party ideology. Often, he crossed swords with GOP leaders and carved his own way through the political jungle of Ohio.
After a 30-year career in government that took him to the upper chambers of power in Washington, Saxbe abruptly quit politics and never looked back, practicing law and enjoying life for another 30-plus years....
The son of a livestock broker, Saxbe barely could afford to go to Ohio State University when he began there in 1934, during the Great Depression, so he attended school only one quarter at a time. He worked alternate quarters driving trucks, bartending and running errands on Wall Street. At one point, he was a seaman on a freighter that sailed to South America. He graduated in 1940.
During World War II, Saxbe became an Army major and a bomber pilot. After the war, he was an auto mechanic but soon tired of that job and started law school at Ohio State in 1946, the same year he got elected to the Ohio House. He worked his way up to speaker in 1953.
Saxbe said being speaker was "the highlight of my political career" because he accomplished so many things. Among them were enacting the first comprehensive prison reform and establishing the Ohio Turnpike and the Ohio Department of Highway Safety.
Elected state attorney general in 1956, Saxbe was swept out of office along with most other Republicans by the right-to-work issue pushed by organized labor in 1958. He practiced law for four years and "made more money than I ever saw in my life." In a 1962 comeback, Saxbe won back the attorney general's office and repeated in 1966....
A Republican by label only, Saxbe was an independent sort who was unafraid to criticize President Richard Nixon's policies and appointees. For example, when Nixon resumed the bombing of North Vietnam after his re-election in 1972, Saxbe said the president "appears to have taken leave of his senses."
Early in the Watergate scandal, Saxbe said Nixon's claiming ignorance was like "the guy who played the piano in a bordello saying he didn't know what was going on upstairs." After Nixon resigned, President Gerald Ford appointed Saxbe ambassador to India, where he served for two years in tense political times.
Saxbe's commitment to public service, his fierce independence, and his willingness to speak his mind (often with a sense of humor) have long been an inspiration to me. In both my professional and personal life, I will continue to strive to live up to the honor and privilege of having his name in my title.
August 25, 2010
Current and past US drug czars urge California to reject pro-pot Proposition 19In this new op-ed in today's Los Angeles Times, the current and all the past United States "drug czars" joined up to tell the fine citizens of the Golden State 'Why California should just say no to Prop. 19." Here are excepts of their advocacy:
Californians will face an important decision in November when they vote on whether to legalize marijuana. Proponents of Proposition 19, the Regulate, Control and Tax Cannabis Act of 2010, rely on two main arguments: that legalizing and taxing marijuana would generate much-needed revenue, and that legalization would allow law enforcement to focus on other crimes. As experts in the field of drug policy, policing, prevention, education and treatment, we can report that neither of these claims withstand scrutiny.
No country in the world has legalized marijuana to the extent envisioned by Proposition 19, so it is impossible to predict precisely the consequences of wholesale legalization. We can say with near certainty, however, that marijuana use would increase if it were legal, because some people now abstain simply because it is illegal. We also know that increased use brings increased social costs....
A 2004 meta-analysis published in the journal Drug and Alcohol Review of studies conducted in several localities showed that between 4% and 14% of drivers who sustained injuries or died in traffic accidents tested positive for delta-9-tetrahydrocannabinol, or THC, the active ingredient in marijuana. Because marijuana negatively affects drivers' judgment, motor skills and reaction time, it stands to reason that legalizing marijuana would lead to more accidents and fatalities involving drivers under its influence....
The current healthcare and criminal justice costs associated with alcohol and tobacco far surpass the tax revenue they generate, and very little of the taxes collected on these substances is contributed to offsetting their substantial social and health costs. For every dollar society collects in taxes on alcohol, for example, we end up spending eight more in social costs. That is hardly a recipe for fiscal health....
As should be evident, despite the millions spent on marketing the idea, legalized marijuana can't solve California's budget crisis or reduce criminal justice costs. Our combined opposition to this ill-considered scheme spans four different administrations and represents the collective wisdom of a former secretary of Education, a governor, a mayor and teacher, an Army general, a drug policy researcher and two police chiefs. Our opposition to legalizing marijuana is grounded not in ideology but in facts and experience.
I continue to be intrigued by the arguments being made for and against Proposition 19, and I find especially notable here that the drug czars make cost-benefit arguments against legalizing marijuana that could readily be used to justify prohibiting alcohol and tobacco. Moreover, the only " facts and experience" that seem particuarly moving in this context is the social and Constitution disaster that was alcohol Prohibition.
The czars recognize that "it is impossible to predict precisely the consequences of wholesale legalization," and I think all sides of the debate are generally just making (self-serving) speculations the impact of ending pot prohibition in California. Consequently, my own inherent affinity for liberty, smaller government, and democratic innovation pushes me toward being a supporter of Proposition 19.
Because I am eager to watch the (high-times) laboratory of democracy at work in California to discover which predicted consequences prove more accurate, I continue to hope that Californians are willing to give repeal of pot prohibition a try. But the drug czars' op-ed reinforce my concerns that the forces of fear and status quo bias and big government all remain eager to make the passage of Proposition 19 an uphill battle.
Some related posts on pot policy and politics:
- Making the conservative case for ending pot prohibition in California
- New "Just Say Now" campaign suggests growing marijuana legalization coalition
- Should and will California's voters legalize marijuana in that state this November?
- "Are Opponents of Marijuana Legalization Getting Dumber?":
- RAND study (foolishly?) tries to forecast impact of pot legalization in California
- "Legalizing marijuana not really a dopey idea"
- Might Sarah Palin's sensible points about pot get Tea Party types to push for sensible drug reforms?
- Thoughtful academic thoughts on ending marijuana prohibitions
- Green tea party: will Glenn Beck or Sarah Palin or other professed liberty lovers support ending pot prohibition in California?
- NPR's interesting coverage of "The New Marijuana"
- This is Fox News on drugs ... lots of questions
- Fascinating racial justice debate on California pot legalization proposition
- New report details racial disparities in pot possession charges in California
- How can and should we assess the "success" of medical marijuana and pot prohibition reform efforts?
- Can any tangible harms be directly traced to marijuana going mainstream in California?
Another notable Second Amendment claim rebuffed by another federal judgeAs detailed in this local report, which is headlined "Federal judge orders BB-gun toting woman to serve sentence," the now-familiar pattern of lower federal courts refusing to give broad application to the Supreme Court's recognizition of individual Second Amendment rights is continuing. Here are the specifics this time around:
A federal judge Tuesday refused to delay a jail sentence any longer for a Santa Cruz Mountains woman who has been fighting to overturn her misdemeanor gun-brandishing conviction with an argument that her Second Amendment rights have been violated.
In a nine-page order, U.S. District Judge Phyllis Hamilton found that Stanford-educated medical doctor Barbara Saldinger is unlikely to prevail in her legal battle and that she should begin serving her 60-day jail sentence immediately....
A Santa Cruz jury convicted Saldinger more than four years ago of brandishing a weapon after she was arrested during a dispute with neighbors in which she displayed a BB gun as she chased them away from her horse farm. Saldinger and her husband had been feuding with the neighbors for months over the location of the boundary between their two properties.
In appealing her case in the state and federal courts, Saldinger's lawyers maintain that her conviction should be overturned because her conduct is covered by a constitutional right to bear arms to protect property. Among other things, Saldinger's appeal argues that recent U.S. Supreme Court rulings extending the Second Amendment to state and local regulations entitles her to a new trial.
Hamilton did not rule on Saldinger's federal claims, but did reject her bid to stay the sentence until her case is fully resolved. The judge called her Second Amendment argument "misplaced," and indicated she does not believe, based on the facts of the case, that Saldinger's appeals will succeed.
Dennis Riordan, Saldinger's high-profile defense lawyer, said the appeal will continue. Even if she serves her sentence, Saldinger has vowed to try to clear her name....
Deputy Attorney General Gregory Ott, who represented the state, said Hamilton's assessment of Saldinger's chance of prevailing is correct. "The Second Amendment was being thrown out there to make a merits claim," he said. "The Second Amendment doesn't have any application to brandishing."
Does police misconduct justify (only) a sentence reduction by precluding the death penalty?The question in the title of this post is prompted by this interesting story about a state trial judge's ruling in a double-murder trial in North Carolina. The story is headlined "No death penalty in slayings of 2 Charlotte officers, judge rules," and here are the details:
A Mecklenburg County judge ruled Tuesday that Demeatrius Montgomery should not face the death penalty because a detective's misconduct has tainted the trial in the killings of two Charlotte police officers.
But Superior Court Judge Forrest Bridges allowed the trial to continue, rejecting a request by Montgomery's attorneys to dismiss the murder charges entirely. Bridges called the case a "moving target." He said former police Detective Arvin Fant's admission that he threw away and plagiarized notes has "placed a cloud of suspicion over these proceedings."
But in his ruling, Bridges said: "We like to think that our cases are handled in a way that we can eventually arrive at the truth and that justice can be obtained."
Montgomery is charged in the 2007 killings of Charlotte-Mecklenburg Police officers Jeff Shelton and Sean Clark.... Montgomery's attorneys say Fant's missing notes may include an interview with a jail inmate who had come forward to report that another man confessed to shooting the officers. But prosecutors said the inmate's statement was contradicted by facts of the case.
Prosecutors wouldn't say Tuesday whether they'll appeal Bridges' decision. But the ruling was a blow for the prosecution, the police department and families of the victims.
Assistant District Attorney Marsha Goodenow implored the judge not to punish the victims and their families for the actions of one investigator, which she argues have not corrupted the case. "Jeff Shelton and Sean Clark did nothing wrong...," Goodenow said. "Their families are in this courtroom; they did nothing wrong. The state did nothing wrong."...
Bridges' ruling sends a strong message to local law enforcement that it will face penalties for mishandling evidence, says Charlotte lawyer Jim Cooney, a death penalty expert who is not involved in the case. "The judge has a great amount of power to decide the right remedy. It can range from not letting a witness testify to throwing out the case," Cooney said Tuesday.
UPDATE: Thanks to Bruce Cunningham, I saw this follow-up story, which includes this noteworthy update:
Earlier Wednesday, prosecutors said they would not appeal Bridge's decision to ban the death penalty in Montgomery's trial. Prosecutors said the appeal would take at least 18 months and it was likely that the judge's decision would be upheld.
California about to get tougher on sex offendersAs detailed in this CNN story, which is headlined "California Senate passes tougher sentencing laws for sex offenders," a high-profile crime appears to be the impetus for another round of get-tough changes to sentencing laws in California. Here are the basics:
A bill that seeks to increase prison sentences and extend parole terms in California for certain sex crimes against minors was passed in a unanimous vote by the state Senate on Tuesday.
"Chelsea's Law" -- named after 17-year-old Chelsea King, who was raped and murdered by a convicted sex offender this year -- will go to the State Assembly next week for a vote. If it passes, it will go to the desk of Gov. Arnold Schwarzenegger, who has already lent support to the legislation formally know as AB 1844.
King disappeared February 25 during a jog in a suburban San Diego park, sparking a massive search that ended a few days later with the discovery of her body. Registered sex offender John Gardner pleaded guilty in April to killing her and another San Diego-area teen, Amber Dubois, in a deal that spared him the death penalty.
The case set off a firestorm of debate over the management of sex offenders in California, with King's parents lending their voices to legislative efforts. "The heartbreaking loss of Chelsea earlier this year revealed a broken public safety system, and it called our entire community and our entire state to action. With the King family's unwavering dedication and with the good faith of many who contributed to shaping this measure, we've built a solution that will protect children and spare other families from tragedy," Assemblyman Nathan Fletcher, the bill's sponsor, said in a statement.
But Chelsea's Law also has its detractors. They argue it advocates a one-size-fits-all approach to punishing sexual offenses and that its fiscal implications are too much for the cash-strapped state to bear.
Supporters of Chelsea's Law, which include California Attorney General Jerry Brown and U.S. Sens. Dianne Feinstein and Barbara Boxer, say it targets the worst of the worst with provisions such as one-strike life without parole sentencing and lifetime parole for certain sex offenses against children younger than 14.
Among the crimes that could carry potential sentences of life without parole under the proposed legislation: rape, lewd and lascivious acts on a minor, continuous sexual abuse of a child that were committed during a kidnapping, first-degree burglary or that resulted in great bodily injury. Offenders could also face a true life sentence for inflicting "aggravated mayhem or torture on the victim" in the commission of the offense.
The bill also requires lifetime parole and GPS supervision with no possibility of discharge for crimes including continuous sexual abuse of a child and certain sex crimes on children younger than 14.
The proposed legislation also would make it a misdemeanor for a registered sex offender who committed a felony offense to enter any park where children regularly gather without written permission from a parole official or chief park official. It also calls for a revision of the California mentally disordered offender laws to provide for continued detention of offenders where evaluation and assessment deem such to be necessary.
Critics of the bill call it a blanket approach that pushes sex offenders further to the fringes of society without addressing the root causes of sexual offenses.
August 24, 2010
"Rethinking Proportionality Under the Cruel and Unusual Punishments Clause"The title of this post is the title of this terrific-looking new article by John Stinneford that is now available via SSRN. Here is the abstract:
Although a century has passed since the Supreme Court started reviewing criminal punishments for excessiveness under the Cruel and Unusual Punishments Clause, this area of doctrine remains highly problematic. The Court has never answered doubts about the legitimacy of proportionality review, leading a controlling plurality of the Court to insist that such review be limited to a narrow class of cases. The Court has also adopted an ever-shifting definition of excessiveness, making the very concept of proportionality incoherent . Finally, the Court’s method of measuring proportionality is unreliable and self-contradictory. As a result, very few offenders have benefited from the Court’s decision to engage in proportionality review. This area of doctrine needs rethinking.
This article is the first to establish that the Cruel and Unusual Punishments Clause was originally meant to prohibit excessive punishments as well as barbaric ones, and that proportionality review is therefore unquestionably legitimate. This article also demonstrates that proportionality is a retributive concept, not a utilitarian one. Punishments are unconstitutionally excessive if they are harsher than the defendant deserves as a retributive matter. Finally, this article shows that proportionality should be measured primarily in relation to prior punishment practice. The proposed approach will align the Court’s proportionality jurisprudence more closely with the core purpose of the Cruel and Unusual Punishments Clause, and will enable the Court to expand proportionality review to a much larger class of cases.
"Innocence claim rejected: Troy Davis loses challenge"
The title of this post is the title of this terrific synopsis by Lyle Denniston at SCOTUSblog of a big death penalty ruling handed down today. Here is the start of the post along with links to the looong ruling the post discusses:
Carrying out a direct order of the Supreme Court, a federal judge in Georgia made a lengthy new study of a 21-year-old murder case but then ruled Tuesday that a Savannah, Ga., man had not proved that he is innocent of killing a police officer in a fast-food restaurant parking lot. In a 172-page opinion (issued in two parts, found here and here), U.S. District Judge William T. Moore, Jr., ruled that it would be unconstitutional to execute an innocent person, but went on to rule that Troy Anthony Davis “is not innocent.” Treating the case as an unusual one procedurally, Judge Moore said it appeared that he was acting as a fact-gatherer directly for the Supreme Court, so any appeal by Davis may have to go directly to the Justices. He sent a copy of his ruling to the Supreme Court.
(NOTE TO READERS: The judge’s legal and constitutional analysis of the evidence and the issues begins on numbered page 91, which is page 29 of Part II. Up to that point, the opinion is a recitation of the evidence and the history of Davis’s challenges to his conviction.)
A year ago, the Supreme Court sent Davis’s latest challenge — one filed directly with the Justices — to the District Court in Georgia “for hearing and determination.” The order said that the lower court should “receive testimony and make findings of fact as to whether evidence that could not have been obtained at the time of trial clearly establishes [Davis's] innocence.” The Justices’ unsigned order, issued over the dissent of Justices Antonin Scalia and Clarence Thomas, was apparently approved on a 6-2 vote (Justice Sonia Sotomayor took no part in it.) It was a highly unusual action because the Court does not often order fact-finding by a trial-level court; it more often pronounces the law and then leaves it to lower courts to implement such a ruling. The dissenters called the action an “extraordinary step — one not taken in nearly 50 years.”
Judge Moore closed his opinion by noting that he had carried out the Supreme Court’s mandate by holding a hearing and now ruling on Davis’s habeas challenge. “This Court,” he wrote, “concludes that executing an innocent person would violate the Eighth Amendment to the United States Constitution” — a point long hinted at but not yet specifically decided by the Supreme Court. However, the judge went on to reject Davis’s claim of innocence, summing up: “The evidence produced at the hearing on the merits of Mr. Davis’s claim of actual innocence and a complete review of the record in this case does not require the reversal of the jury’s judgment that Troy Anthony Davis murdered City of Savannah Police Officer Mark Allen MacPhail on August 19, 1989.”
In a footnote, the judge added that “while the state’s case may not be ironclad, most reasonable jurors would again vote to convict Mr. Davis of Officer MacPhail’s murder. A federal court simply cannot interpose itself and set aside the jury verdict in this case absent a truly persuasive showing of innocence. To act contrarily would wreck complete havoc on the criminal justice system.” (The judge may have meant “wreak,” not “wreck.”)
Can one be a committed retributivist without some deep belief in a higher power?
After I wrapped up my all-too-brief discussion of traditional punishment theories in my first-year Criminal law class today, one of my terrific students asked me a variation of the question I have posed in the title of this post. In part because I tend to believe in some form of a higher power, and also because I tend not find retributivist theories of punishment especially appealing, I really was not able to provide an especially satisfying answer to my student's terrific question. Consequently, I thought it might be useful (and perhaps also just) to ask if any readers have a satisfying answer to the question above.
I suppose I would especially like to hear answers to the question from those who genuinely view themselves as committed atheists and committed retributivist. But, of course, I welcome on-point and respectful comments from anyone (though please Supremecy Clause, try to keep it short).
Sixth Circuit (sort of?) addresses post-Booker ex post facto issueToday at the end of a long opinion involving some interesting facts, a Sixth Circuit panel in US v. Lanham, No. 08-6504 (6th Cir. Aug. 24, 2010) (available here), has a short discussion of the circuit-splitting issue of whether the ex post facto clause limits application of the latest version of the federal sentencing guidelines in a post-Booker advisory sentencing world. Here is the Sixth Circuit's entire discussion of this issue toward the very end of the Lanham opinion (with my bold accents added):
The sentencing court is to apply the version of the Sentencing Guidelines in effect at the time of sentencing unless it “determines that use of the Guidelines Manual in effect on the date that the defendant is sentenced would violate the ex post facto clause.” U.S.S.G. § 1B1.11(b)(1).
Defendants committed their offenses in 2003 when the 2002 Guidelines were in effect at the time of the crime. The 2008 Guidelines, in effect at time of sentencing, establish a higher base offense level for the offense of Criminal Sexual Abuse. The government argues that using the 2008 advisory Guidelines, which established a more onerous offense level than that in effect on the date of crime, would not violate the Ex Post Facto Clause under the new post-Booker advisory Guidelines regime. The Ex Post Facto Clause “bars application of a law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.” Johnson v. United States, 529 U.S. 694, 699 (2000) (internal citations and quotations omitted).
The Supreme Court has interpreted the Ex Post Facto Clause to bar retroactive application of a revised version of a state’s sentencing guidelines, Miller v. Florida, 482 U.S. 423 (1987), and this Court applied that decision to the federal Sentencing Guidelines, see United States v. Kussmaul, 987 F.2d 345, 351-52 (6th Cir. 1993). The government argues that this legal precedent no longer applies because, post-Booker, the Sentencing Guidelines are advisory rather than mandatory. Although this Court has not directly determined whether the now advisory Guidelines regime implicates Ex Post Facto concerns, there is some case law in support of holding that it does. This Court has acknowledged that “[t]he presence of discretion does not displace the protections of the Ex Post Facto clause.” Michael v. Ghee, 498 F.3d 372, 382 (6th Cir. 2007). When evaluating the reasonableness of a sentence, the reviewing court must consider the applicable Guidelines range and failure to do so is “reversible error.” See United States v. Kosinski, 480 F.3d 769, 779 (6th Cir. 2007). The Sentencing Guidelines are still relevant and are a starting point for determining a defendant’s sentence. Only when the Guidelines range is unable to meet the goals of the Sentencing Guidelines is a sentencing court expected to vary from the Guidelines sentence. 18 U.S.C. § 3553(a). As a result, the advisory nature of Guidelines does not completely eliminate Ex Post Facto concerns. Ironically, the government is presumably interested in having the 2008 Guidelines apply because it would impact Defendants’ sentence, which demonstrates the Ex Post Facto concerns that come into play when retroactively applying the 2008 Guidelines. Accordingly, the district court’s determination is AFFIRMED.
I read the sentences in bold above as a formal holding by the Lanham panel that, in the Sixth Circuit, the Ex Post Facto Clause continues to limit/prevent the application of a more severe current (advisory) sentencing guideline if and when the defendant's crime was committed when the applicable guideline was less harsh. But, as detailed in this prior post, a Fifth Circuit ruling earlier this year cited a 2006 Sixth Circuit ruling (United States v. Barton, 455 F.3d 649, 655 n.4 (6th Cir. 2006)) for the proposition that the Sixth Circuit did not think ex post facto concerns persisted after Booker.
Whatever might be the law now in the Sixth Circuit, I hope the Supreme Court get to this issue soon. Indeed, I remain surprised that this issue has not been effective resolved (or even all that effectively litigated) nearly six full years after the guidelines became advisory.
A few related posts on post-Booker ex post issues (with ruling dates in parentheses):
- Seventh Circuit holds ex post facto no longer applicable to guideline changes after Booker (2006)
- DC Circuit produces crisp split on ex post issues after Booker (finally!!) (2008)
- Fourth Circuit rules that Ex Post Facto Clause still limits application of new advisory guidelines (2010)
- A notable district court opinion on the post-Booker ex post facto issue (2010)
A morning hit of marijuana headlines and stories
A quick stop by Google news has led me to a number of interesting recent stories about marijuana legalization discussion and debates. Here is a sample:
From the AP here, "Some Mass. towns give up on marijuana enforcement"
From the Denver Post here, "Ritter turns to medical-marijuana fund to help balance Colorado budget"
From the Helena Independent Record here, "Panel hashes out rewrite of medical marijuana regulations in Montana"
From the New Jersey Newsroom here, "N.J. medical marijuana registry in the works"
From the Oakland Tribune here, "State of pot: Who's lining up for and against legalized marijuana"