Sentencing Law and Policy

Does (and should) Casey Anthony now have a Second Amendment right to buy a gun?

The provocative (but still serious) question in the title of this post is inspired by this recent post on Second Amendment jurisprudence and this new ABC News report headlined "Casey Anthony Cops May Provide Her Protection When She Leaves Jail."  Consider first the start of the news report:

The police who investigated Casey Anthony for murder -- and still believe she is guilty -- said today that they are assessing the threat to her safety and may provide police protection for Anthony when she leaves jail this weekend.

Orange County Sheriff Jerry Demings acknowledged the anger over the verdict that found Anthony not guilty of killing her 2-year-old daughter Caylee. The fury has been directed at Anthony, her parents, the judge and the jury.  "Our intelligence section is assessing the threats," said Sgt. John Allen, who helped interrogate Anthony at Universal Studios after she admitted she had lied about working there.

"A lot of people have strong sentiments about the outcome, but no one has the right to take the law into their own hands.... I would hope people step back and, regardless of their feelings, not commit another crime," Allen said at a news conference with other members of the team that investigated Anthony.

Demings said that when Anthony, 25, leaves jail Sunday, "We will assist in her departure from those premises."  If there is an "overriding public safety need," they will escort her to her destination, the sheriff said.  He added, however, "We will not be providing any elaborate protection for Casey once she leaves."

The jury's not guilty verdict has not changed the opinion of the cops who grilled Anthony and investigated Caylee's death.  When asked whether he still believed that Anthony was guilty, Allen replied, "I certainly don't have any doubt."

Consider also the interesting reality that federal gun laws (and apparently also Florida gun laws) only prohibit gun possession by persons convicted of a felony or a misdemeanor involving domestic violence.  Anthony's acquittal on all felony charges and convictions only for lying to the police would apparently not prohibit her, as a matter of state and federal statutory law, from now buying a gun upon her release from jail in a few days.

But if state or federal statutory laws (or related permitting regulations) were somehow read to prevent Anthony from buying a gun, am I wrong to suggest she might still have a fundamental constitutional right to buy a gun for self protection after Heller and McDonald?  Though not precise on the Second Amendment's contours, Heller and McDonald and subsequent lower court rulings all suggest the right of personal self-defense is closely linked and related to the core of the Second Amendment right to keep and bear arms.  The ABC News story reinforces that few persons in the US may be facing personal threats comparable to Anthony (and the same story may give her reason to worry that local police are now not likely eager to take a bullet for her).

Then again, the Seventh Circuit's recent Ezell ruling (discussed here) strongly suggests that it is only "law-abiding, responsible citizens" who get the full protection of the fundamental rights safeguarded by the Second Amendment.  Notwithstanding her jury acquittal on all felony counts, the evidence presented at Anthony's trial surely established that Anthony is not a prime example of a "law-abiding, responsible citizen."  Thus, I return to the serious question in the title of this post: Does (and should) Casey Anthony now have a Second Amendment right to buy a gun?

A few related Second Amendment posts:

• Why the Second Amendment is not (and should never be?) "part of normal constitutional law"
• "The Standardless Second Amendment"
• Can dismissed domestic violence complaint justify revoking gun permit?
• Split en banc Seventh Circuit in Skoien upholds categorical exclusion of DV misdemeanant from Second Amendment
• Skoien and the many challenges of Second Amendment jurisprudence
• Eleventh Circuit rejects Second Amendment challenge to federal conviction for misdemeanant firearm possession
• Assailing the unjustified Second Amendment limits in Heller
• Fourth Circuit orders Second Amendment hearing to assess constitutionality of § 922(g)(9)

Ninth Circuit essentially demands Congress amend restitution law to allow victims to recover from child porn possessor

As first noted in this post, yesterday a Ninth Circuit panel issue a very important ruling US v. Kennedy, No. 10-30065 (9th Cir. July 11, 2011) (available here), which vacated a restitution sentence imposed on a child porn possessor based on the conclusion that "the government failed to carry its burden of proving that Kennedy’s offense conduct proximately caused the losses incurred by the victims." Regular readers know that this issue has already divided district and circuit courts, and all should find notable these closing paragraphs from the Kennedy opinion:

[I]dentifying a method for imposing restitution on defendants convicted of possession, receipt, or transportation offenses is not easy.  The underlying problem is the structure established by § 2259: it is a poor fit for these types of offenses.  While direct evidence of a proximate loss, such as evidence that “after receiving notification of the [d]efendant’s offense, the victim had to attend any additional therapy sessions [or] miss any days of work,” Church, 701 F. Supp. 2d at 833, would be sufficient, it is likely to be a rare case where the government can directly link one defendant’s viewing of an image to a particular cost incurred by the victim.  While we do not rule out the possibility that the government could devise a formula by which a victim’s aggregate losses could be reasonably divided (for example, by developing a reasonable estimate of the number of defendants that will be prosecuted for similar offenses over the victim’s lifetime, and dividing the total loss by that amount), we suspect that § 2259’s proximate cause and reasonable calculation requirements will continue to present serious obstacles for victims seeking restitution in these sorts of cases.  Nevertheless, the responsibility lies with Congress, not the courts, to develop a scheme to ensure that defendants such as Kennedy are held liable for the harms they cause through their participation in the market for child pornography.  In the future, Congress may decide to reconsider whether § 2259 is the best system for compensating the victims of child pornography offenses, or whether statutory damages of a fixed amount per image or payments into a general fund for victims would achieve its policy goals more effectively.

Until Congress makes such a change, we remain bound by the language of the statute and our precedent. Because the district court’s restitution order directed Kennedy to pay for losses that the government did not prove were proximately caused by his offense, the order was unlawful under § 2259 and must be vacated.  On this issue, we remand to the district court for proceedings consistent with this opinion.  In all other respects, Kennedy’s conviction and sentence are affirmed.

In other words, the Ninth Circuit panel in Kennedy indicates it will be virtually impossible, in light of existing federal restitution law, for prosecutors to meet the burden of proving that an individual possessor of child porn proximately caused any of the losses claimed by a child porn victim.  Thus, as the title of my post suggests, the Kennedy ruling essentially demands that Congress change existing federal restitution law if it wishes for these victims to be able to recover from possessors of their pictures.

I suspect that some advocates for broad recovery of restitution by victims in the sentencing process, especially in this unique and uniquely emotional setting, will be trouble by the Ninth Circuit panel's work in Kennedy.  But I also suspect that fans of judicial restraint, as well as anyone who believe these sorts of victim compensation issues ought to be resolved in civil tort suits rather than in a criminal sentencing proceeding, will find a lot to like in the Kennedy conclusion.

Some related recent federal child porn restitution posts:

• Eleventh Circuit publishes (first?) circuit opinion affirming restitution in sentencing of child porn downloader
• Fifth Circuit rules in child porn case that no proximate causation needed to get restitution under CVRA
• Fifth Circuit panel questions another panel's recent ruling on child porn restitution sentencing
• DC Circuit weighs in on host of challenging child porn restitution issues
• Restitution terms debated in another federal child porn downloading sentencing
• Another significant federal child porn restitution decision from NDNY district court
• Effective new opinion discussing restitution in federal child porn possession cases
• Another thoughtful and notable district court opinion on restitution in child porn sentencing
• Federal judge imposes large restitution punishment for downloading child porn
• Federal sentence for receiving child porn includes forfeiture of home
• "Prosecutors seek nearly $200k for child porn victim"
•  Notable report on latest developments in federal restitution awards in child porn downloading cases
• New student note on restitution sentences for child porn downloaders

Do all agree with Ohio's Governor that sentencing reform "isn't a place for politics"?

The question (and quote) in the title of this post is inspired by this report from the Cleveland Plain Dealer, which is headlined "Northeast Ohio leaders embrace sentencing reform law during Gov. John Kasich visit."  Here is the background:

Northeast Ohio community leaders publicly embraced Ohio's new sentencing reform law Tuesday at an event with its chief cheerleader, Gov. John Kasich.

"This bill is a long time coming," State Sen. Nina Turner of Cleveland said, standing behind a lectern at Mt. Sinai Baptist Church on Cleveland's East Side, before a couple dozen politicians, ministers and people who work directly with felons.

In addition to evening out the penalties for crack and powder cocaine, the law, formerly known as House Bill 86, diverts low-level criminals -- such as those arrested with drug paraphernalia – to community based programs focused on rehabilitation and education. It also allows future inmates to earn shorter sentences if they complete education and mental health programs while incarcerated....

Kasich said the sentencing reform had been stymied in the past by politics.  "It sat for 25 years and nobody wanted to do anything about this," he said.  "There isn't a place for politics.

"I am pretty emotional about this bill because I think what we have done with sentencing reform literally will save thousands of lives," said Kasich, who arranged the event and did not take questions from the audience....

William Denihan, chief executive of the Alcohol, Drug Addiction and Mental Health Services Board of Cuyahoga County, welcomed the passage of the sentencing bill, noting that the key obstacles for many low-level criminals are substance abuse and mental health problems. "These folks need treatment, not incarceration," he said....

The bill also gives judges more discretion in sentencing juveniles, says Gabriella Celeste of Case Western Reserve University's Schubert Center for Child Studies. Celeste, who testified before lawmakers on behalf of a coalition of juvenile justice advocates funded by the MacArthur Foundation, said judges can weigh a juvenile's personal accomplishments and issues. "We are just thrilled that in Ohio we are moving toward a place where we are treating kids as kids," she said.

In addition to believing Ohio Governor Kasich merits much praise for helping to get significant sentencing reform passed in Ohio, I also believe he is right to express frustration about how political posturing and rhetoric often thwarts the enactment of effective and just sentencing reforms.  And yet, I still find a bit jarring (while also a bit encouraging) to hear my Republican Governor assert categorically that "there isn't a place for politics" in the development of state sentencing reforms.  I wonder how others are inclined to react to this assertion.

Through the federal "crime of violence" looking glass with the Tenth Circuit

Among a number of interesting and notable federal criminal justice rulings handed down by the Tenth Circuit today is US v. Armijo, No. 09-1533 (10th Cir. July 12, 2011) (available here), which in the course of many dense pages highlights the Alice-in-Wonderland quality of some modern federal sentencing doctrine.

In short form, Armijo holds that a Colorado conviction for manslaughter is not a "crime of violence" for federal guideline calculation purposes, while a Colorado conviction for felony menacing is a "crime of violence" for federal guideline calculation purposes.  In other words, according to the Tenth Circuit's understanding of federal sentencing doctrines, the defendant in Armijo is not to be subject to a "crime of violence" guideline enhancement based on killing somebody a certain way in Colorado, but he is to be subject to such an enhancement based on threatening somebody a certain way in Colorado.  (I am tempted to joke that shrewd offenders in Colorado should start killing folks before threatening them.)

I am not faulting the Tenth Circuit for its (Mad Hatter) ruling as much as I fault the US Supreme Court, the US Sentencing Commission and especially the US Congress for letting federal sentencing doctrine get to a point where lower federal courts are forced to sort through these crazy legal disputes.  And I fear that, despite cries by Justices Alito and Scalia (and others), for Congress (or others) to clean up this mess, lower federal court judges will not be able to escape Wonderland anytime soon.

Judge Barksdale spotlights modern sentencing review challenges in lengthy dissent

An interesting little Fifth Circuit panel ruling in US v. Mudekunye, No. 09-10968 (5th Cir. July 11, 2011) (available here), came with a very lengthy partial dissent by Judge Barksdale that started this way:

I dissent only from the majority’s, under plain-error review, requiring resentencing for Mudekunye (part II.B.2.).  It has been almost 20 years since United States v. Olano, 507 U.S. 725 (1993), clarified application of plain-error review.  And, for reviewing sentences imposed through application of the Sentencing Guidelines, it has been over six years since United States v. Booker, 543 U.S. 220 (2005), held the Guidelines are only advisory.  In the light of Olano and Booker, it would seem that plain-error review would have been simplified and made more flexible.  Unfortunately, if not amazingly, just the opposite has occurred.

This is vividly reflected in the majority’s analysis and holding for Mudekunye’s sentence, through which it seeks to apply the Supreme Court’s and our precedent.  It’s time for our court to step back, re-examine, and simplify this important and all too often complex aspect for applying plain-error review to sentences imposed under the advisory Guidelines. Accordingly, I urge our court to review en banc this part of the majority opinion.

In vacating Mudekunye’s sentence, the majority emasculates the plain-error standard of review by applying it in a manner inconsistent with the Supreme Court’s and our precedent.  In an area of law it admits is unclear, the majority effectively creates a new rule: where defendant’s imposed sentence lies outside the correct advisory Guidelines sentencing range, defendant must be resentenced in district court. This rule is neither supported by precedent nor justified under plain-error doctrine.  The majority’s strained insistence on resentencing reflects that, within our circuit, plain-error review, in this context, has been weakened to the point of toothlessness, thereby defeating its many important and salutary purposes, including “to induce the timely raising of claims and objections . . . .”  Puckett v. United States, 129 S. Ct. 1423, 1428 (2009).

Interesting (all-star?) curveballs aready being thrown in early innings of Rogers Clemens trial

Just a few of the news reports linked below emerging from the on-going trial of former MLB all-star Roger Clemens confirms my sense that, at least for hard-core criminal law and procedure fans, this federal perjury trial may prove even more interesting than the Casey Anthony state murder trial:

• From the AP here, "Clemens plans to question House hearing's validity"

• From the New York Daily News here, "Judge in Roger Clemens trial disturbed by ex-Yankee's family using social media to rip witnesses"

• From the AP here, "Roger Clemens might not testify at perjury trial"

The first story linked above raises interesting legal questions about whether and how the nature and validity of proceeding during which Clemens allegedly lied to Congress is legally significant. The second story linked above raises interesting practical (and constitutional?) questions about whether and how a trial judge might prevent friends of a defendant from attacking his accusers via social media. The third story linked above raises interesting strategic questions about whether and how a defendant can and should try to resist being convicted of lying under oath without being willing to speak under oath again.

Tonight I will be more focused on the MLB All-Star game than on figuring out answers to these legal, practical and strategic questions.  But these stories are leading me to believe the Clemens trial may prove over the next few months to be more interesting to follow thanmy fantasy baseball team (which remains mired near the bottom of my league thanks in part to poor play by Clemens' former battery mate, and possible trial witness, Jorge Posada.)

Another timely and terrific NASC conference in the works this summer

I am pleased to highlight the National Association of Sentencing Commissions' annual conference, which this year is being hosted by the Oregon Criminal Justice Commission and the Willamette University College of Law.  This year's NASC conference is taking place in Portland, Oregon from July 31 -- August 2, 2011, and the conference is titled "Blazing a Trail to the Future."  This year's agenda reveals how timely, thoughtful and forward-looking the program is for today's sentencing times, as evidence by this partial list of panel topics:

• Cost-Benefit Analysis in Criminal Justice
• Recidivism Research
• A New Look at Prosecutorial Discretion
• Examination of Mandatory Minimum Sentences
• Crime Perceptions and Media: Evidence Based Journalism?

A lot more information on the 2011 conference is available on the conference website at this link (and much information about past NASC conferences is now effectively assembled here).  

I am very bummed that other summer commitments mean I will not be able to make it out to Oregon for this event, but I heartily recommend this conference to all serious sentencing practitioners and academics.  When able to attend, I always learn more new stuff about sentencing reseaerch and also sentencing in the states from attending NASC conferences than from attending any other annual conference.

En banc Eighth Circuit finds misapplication of career offender guideline not cognizable under § 2255

Joining the Eleventh Circuit (and deviating, I believe, from at least one ruling by the Seventh Circuit), the Eighth Circuit today, though a split 6-5 en banc ruling, adopts federal prosecutors' "contention that [a defendant's] collateral attack on an application of the career offender guidelines provisions is not cognizable under § 2255." This ruling today comes in Sun Bear v. US, No. 09-2992 (8th Cir. July 12, 2011) (available here), and here is a key passage from the majority opinion per Judge Loken (with circuit cites/internal quotes) mostly omitted:

Section 2255 “was intended to afford federal prisoners a remedy identical in scope to federal habeas corpus.” Davis, 417 U.S. at 343.  Like habeas corpus, this remedy “does not encompass all claimed errors in conviction and sentencing.”  United States v. Addonizio, 442 U.S. 178, 185 (1979).  It provides a remedy for jurisdictional and constitutional errors, neither of which is at issue here.  Beyond that, the permissible scope of a § 2255 collateral attack on a final conviction or sentence is severely limited; “an error of law does not provide a basis for collateral attack unless the claimed error constituted ‘a fundamental defect which inherently results in a complete miscarriage of justice.’”  Id., quoting Hill v. United States, 368 U.S. 424, 428 (1962).

These principles are reflected in the text of § 2255, which the Supreme Court described as “somewhat lacking in precision” in Davis, 417 U.S. at 343.  A § 2255 motion may be filed by a federal prisoner “claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.”  § 2255(a). The court shall grant appropriate relief if it finds “that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack.”  § 2255(b).

Applying these principles, this court and our sister circuits have consistently held that ordinary questions of guideline interpretation falling short of the ‘miscarriage of justice’ standard do not present a proper section 2255 claim.  Therefore, such questions may not be re-litigated under § 2255....

In this case, the panel concluded that the miscarriage-of-justice exception applies because Sun Bear’s claim “is based on a post-conviction change in the law that renders unlawful the district court’s sentencing determination.” Sun Bear II, 611 F.3d at 930, citing Davis, 417 U.S. at 346-47. We disagree. Sun Bear’s 360-month sentence is not unlawful. An unlawful or illegal sentence is one imposed without, or in excess of, statutory authority. Sun Bear’s sentence is well-within the statutory maximum authorized for the offense of second-degree murder, see 18 U.S.C. § 1111(b), and in addition within the initial guidelines range of 292-365 months.

Here is the start of the en banc dissent in Sun Bear per Judge Melloy:

At sentencing and on direct appeal, Sun Bear correctly argued that he did not qualify as a career offender.  We rejected his arguments, but the Supreme Court subsequently vindicated his position in an opinion addressing the same question of law. See Begay v. United States, 553 U.S. 137 (2008).  That opinion has retroactive effect, is not clear the error below was harmless, and Sun Bear has diligently pressed his correct interpretation of the law at every available opportunity.  It is "inconsistent with the rudimentary demands of fair procedure," Hill v. United States, 368 U.S. 424, 428 (1962), and therefore amounts to a miscarriage of justice to deny Sun Bear the retroactive benefit of the Court's opinion. Accordingly, I dissent.  I would hold that Sun Bear's claim is cognizable pursuant to 28 U.S.C. § 2255(b) and that he is entitled to be resentenced.

"Mass Exoneration Data and the Causes of Wrongful Convictions"

The title of this post is the title of this new paper by Professor Russell Covey now available via SSRN. Here is the abstract:

What we currently know about the persons who have been wrongfully convicted is based largely on exonerations resulting from post-conviction testing of DNA.  Study of those cases has produced a dataset of information about the factors that contribute to wrongful convictions and the procedures relied upon both to convict and then, later, to exonerate, those defendants.  While critically important, this dataset has important limitations, chief among them is that it is largely limited to the kinds of cases in which DNA evidence is available for post-conviction testing.

Drawing on fresh empirical data, my paper attempts to improve the dataset on the wrongfully convicted by assessing another group of exonerees, those exonerated in two major scandals, the Rampart scandal in Los Angeles, and the Tulia scandal in Texas.  In both of these cases, large numbers of persons were wrongfully convicted and later formally exonerated.  The profile of these defendants varies dramatically from that of the typical DNA exoneree.  Broadening the data set to include these exonerees should cause us to rethink the major causes of wrongful convictions and the most pressing remedial solutions to the problem.

New study highlights the critical importance of effective corrections programming

This new item at The Crime Report about some new research on recidivism highlights the critical importance of effective criminal justice programming:

A study of 20,000 former adult inmates in Ohio found that those who participated in "unsuccessful" community-based correctional programs were 32 percent more likely to re-offend than those who were not involved in a program at all.

The research, conducted by over three years by researchers from the University of Cincinnati, will be presented next week at the International Congress on Law and Mental Health at Humboldt University in Berlin, Germany.

Researchers found that in halfway houses and other community corrections programs that had hands-on leadership, ongoing staff training and individual case plans, clients were half as likely to re-offend within two years than those who were not in programs.

Researchers looked at 64 residential treatment centers in Ohio and found that factors including community volunteer support, how rigorously the program self-monitored, and how well the staff assessed the individual needs of each client—including their marital status and reading level—made a major positive difference in outcomes.

New EJI report assails Alabama death sentences based on judicial override of jury life sentences

As detailed in this press release and in this new "Sidebar" piece by Adam Liptak in the New York Times, the Equal Justice Initiative has just released a new report on death sentencing in Alabama. The report, which is available here, is titled "The Death Penalty in Alabama: Judge Override."  Here is a summary of the report's coverage as provided by the start of the press release:

Allowing elected trial judges in Alabama to override jury verdicts of life in capital cases and impose the death penalty has resulted in some of the most arbitrary and unreliable death sentencing in the United States according to a new study by EJI.  A new report released today by EJI reveals that -- unlike in any other state -- elected Alabama judges overwhelmingly use their virtually unrestricted override power to impose death in cases where death-qualified Alabama juries have returned verdicts for life imprisonment without parole.

Of the 34 states with the death penalty, Alabama is the only jurisdiction where judges routinely override jury verdicts of life to impose capital punishment.  Since 1976, Alabama judges have overridden jury verdicts 107 times.  Although judges have authority to override life or death verdicts, in 92% of overrides elected judges have overruled jury verdicts of life to impose the death penalty.

Twenty-one percent of the 199 people currently on Alabama’s death row were sentenced to death through judicial override.  Judge override is the primary reason why Alabama has the highest per capita death sentencing rate and execution rate in the country.  Last year, with a state population of 4.5 million people, Alabama imposed more new death sentences than Texas, with a population of 24 million.

Override is legal in only three states: Alabama, Delaware, and Florida.  Florida and Delaware have strict standards for override.  No one in Delaware is on death row as a result of an override and no death sentences have been imposed by override in Florida since 1999.  In Delaware and Florida, override often is used to overrule jury death verdicts and impose life -- which rarely happens in Alabama.

Two notable and important child porn sentencing rulings from the Ninth Circuit

The Ninth Circuit today handed down a bunch of criminal law opinions, including two dealing with oft-occurring and important federal child porn sentencing issues.  Here are links and the basics from the start of the opinions, which were issued by two distinct panels:

US v. Kennedy, No. 10-30065 (9th Cir. July 11, 2011) (available here):

Joshua Osmun Kennedy was convicted by a jury of possessing and transporting child pornography.  He appeals his conviction, his sentence, and the district court’s order directing him to pay $65,000 in restitution to two victims.  We affirm Kennedy’s conviction and sentence.  Because the government failed to carry its burden of proving that Kennedy’s offense conduct proximately caused the losses incurred by the victims, we vacate the restitution order.

US v. Quinzon, No 10-50240 (9th Cir. July 11, 2011) (available here):

Pio James Quinzon was convicted of possession of child pornography. He now appeals a judgment that includes, as a condition of supervised release, a requirement that monitoring technology be installed on his computer-related devices.

The Kennedy ruling appears to be the most notable of this pair because, as it explains, the child porn restitution matter concerns a "difficult issue of statutory interpretation [that] has been considered, but not satisfactorily resolved, by several... circuits. See United States v. Monzel, ___ F.3d ___, 2011 WL 1466365 (D.C. Cir. 2011); In re Amy Unknown, 636 F.3d 190 (5th Cir. 2011); United States v. McDaniel, 631 F.3d 1204 (11th Cir. 2011).  (I hope to have a separate post on this issue and the  Kennedy ruling once I have time to consume it fully.)

"The Constitutionality of Post-Crime Guidelines Sentencing"

The title of this post is the title of this new piece by Benjamin Holley, an Illinois Assistant State's Attorney, which is now available via SSRN. Here is the abstract:

United States v. Booker famously excised the mandatory provisions of the federal Sentencing Guidelines, making them “effectively advisory.”  Judges are still required to calculate the applicable Guidelines range, however, and will rarely be overturned if they impose a within-Guidelines sentence.  The question thus arises: if the Guidelines are not formally mandatory, but remain the de facto basis for sentencing, does use of post-crime Guidelines violate the Ex Post Facto Clause?

A circuit split on this issue has developed, with the Seventh Circuit authorizing the use of post-crime Guidelines and the D.C. Circuit holding that such use can violate the ex post facto prohibition.  This article examines both the legal standards and the empirical evidence, ultimately arguing that the use of post-crime Guidelines does not violate the Ex Post Facto clause.

Intriguing Sixth Circuit habeas reversal concerning state resentencing lengthening prison term

The Sixth Circuit today issued an interesting habeas opinion today in Goodell v. Williams, No. 09-4338 (6th Cir. July 11, 2011) (available here), which gets started this way:

Warden Jesse Williams appeals from an order of the district court conditionally granting habeas relief to petitioner Charles Goodell.  The district court determined that the process by which Goodell was resentenced in the Lucas County (Ohio) Court of Common Pleas, resulting in a sentence longer than the original sentence he had successfully challenged, gave rise to a presumption of vindictiveness.  Finding that the presumption was not rebutted by the Warden, the district court ruled that Goodell’s resentencing violated his due process rights.  Further, the court held the Ohio Court of Appeals’ contrary ruling was contrary to clearly established federal law.  We conclude that the circumstances of Goodell’s resentencing do not give rise to a presumption of vindictiveness, that even if such a presumption applied, it was rebutted, and that, in any event, the Ohio Court of Appeals’ adjudication of these issues was neither contrary to nor an unreasonable application of clearly established federal law.  For the reasons that follow, the district court’s ruling is reversed.

Should a minor crime prevent offender from lawful use of medical marijuana?

The question in the title of this post is prompted by this interesting local piece out of Michigan, which is headlined "Judges snuffing out probationers’ medical marijuana," and begins this way:

Medical marijuana users who run afoul of the law are discovering probation is an antidote to their certification cards.

An Adrian man was warned against applying for a medical marijuana card when he was placed on probation Thursday for a cocaine offense.  Growing and using marijuana is still against federal law, said Lenawee County Circuit Judge Timothy P. Pickard.  And the state medical use program does not seem to be restricting certification to the seriously ill.

“I don’t buy it,” Pickard said during the sentencing. “It seems to be an excuse for everybody to light up and smoke dope.” Pickard, Lenawee County’s chief judge, said Friday the courts have no policy ruling out all use of medical marijuana for people on probation. But he has to be convinced there is a legitimate need, he said.

Regulations written by the state after a medical marijuana ballot proposal was passed by voters in 2008 do not require a prescription. Citizens can apply for certification cards with only a signed statement from a physician saying it may benefit their medical condition.

Probation terms can restrict otherwise legal behavior, Pickard said, such as drinking alcohol or associating with people having felony records. And it would be difficult to excuse violating federal law by growing and using marijuana while on probation.

Pickard said he will still consider approving medical marijuana use for probationers whose convictions are not drug-related and who can show evidence of a serious medical condition that can be treated with marijuana. If those conditions are met, “I’m fine with it,” Pickard said. “That doesn’t seem to be the case. I haven’t seen that yet.”

A similar approach is being followed in district court, where offenders frequently are required to surrender medical marijuana cards as a condition of probation. Chief probation officer Tony Gonzalez said district court has no written probation policy on medical marijuana. Judges review it on a case-by-case basis, he said. “We’re taking a hard stance on it,” Gonzalez said. “If they’re just going out shopping for it, we tell them no.”

The Michigan Depart­ment of Corrections also has no written policy on how medical marijuana should be addressed for offenders placed on probation, said department spokesman Russ Marlan. “We certainly would never make a recommendation that somebody do that,” Marlan said. But it is left to local judges to decide if medical marijuana is prohibited as a probation term.

"States: Death-penalty drug scramble, higher cost"

The title of this post is the headline of this new press report, which gets started this way:

States not only are having an increasingly difficult time getting the injectable drugs to carry out death sentences, they're also paying as much as 10 times more for the chemicals as in years past.

Ohio only has 40 grams of pentobarbital, enough for seven executions scheduled through February, meaning a likely scramble to find enough for the four scheduled beyond that.

Texas, with the country's busiest death chamber, says it has enough for eight more executions but won't comment on supplies past September.  It used the drug Thursday night for the execution of Mexican national Humberto Leal for the 1994 rape-slaying of a 16-year-old girl in San Antonio, despite White House pleas for a Supreme Court stay.

Ohio, Texas and several other states switched to pentobarbital from sodium thiopental this year, after the only U.S. manufacturer of sodium pentothal said it would discontinue production.

Lake Forest, Ill.-based Hospira, which strongly opposed the drug's use in executions, stopped manufacturing it altogether.  Hospira said it couldn't promise authorities in Italy, where the drug was to be produced, that it could control the product's distribution all the way to the end user to guarantee it wouldn't be used in executions.

States then switched to pentobarbital, but Denmark-based Lundbeck Inc., the only U.S.-licensed maker of the injectable barbiturate, said July 1 it would put the medication off-limits for capital punishment.  It announced a new, tightly controlled distribution system, intended to keep the drug out of the hands of prisons while ensuring deliveries to hospitals and treatment centers for therapeutic purposes, as in the treatment of epilepsy.

It's unclear whether states will be able to stockpile any remaining pentobarbital, which is marketed as Nembutal.  Lundbeck says it believes little inventory is left for states to purchase following the announcement.  And with an expiration date of about two years, states would have to switch by 2013 anyway.

If pentobarbital supplies dry up, executions could be delayed around the nation as states look for yet another alternative.  For many states, making a switch requires a lengthy regulatory and review process.  And any change typically leads to lawsuits from inmates who claim the substance violates the ban on cruel and unusual punishment. Lawsuits over pentobarbital are still being heard.

Is it sound, just and wise to often question the competency of juvenile offenders?

The question in the title of this post is prompted by this interesting article in the New York Times headlined "Legal Tactic Raises Issues for Juveniles."  Here are excerpts:

Over the past 18 months, there has been a tenfold increase in the number of cases in San Francisco’s juvenile courts in which defense lawyers question whether minors are able to understand the legal process or assist in their own defense and therefore should not be subject to legal proceedings.

The surge in competency cases has created a range of new problems for San Francisco’s juvenile justice system. When lawyers express doubts about their clients’ competency, the court suspends proceedings while the minors are evaluated.  Meanwhile they are often locked up for months or released without adequate supervision or services....

The drastic increase in competency cases is attributable, in part, to three precedent-setting cases tried in Sacramento between 2005 and 2008. In the most important of those cases — known as Timothy J — a Sacramento public defender, Arthur Bowie, successfully argued that children could be found incompetent based merely on their level of developmental maturity. The finding allowed the question of competency to come into play even in the absence of mental health problems or developmental disabilities.

“Why do we say a child can’t have a drink at 10 because he’s not thinking it through, but he can walk into a courtroom and understand what’s going on?” Mr. Bowie said in an interview....

Some argue that the Timothy J case has made it easier for defense lawyers to get minors released and cases dismissed.  “I know people are using it as a litigation strategy, and that’s not a good thing,” said George Beckwith, a private lawyer who defends minors in San Francisco.  “I don’t believe it’s rampant but I do believe it exists.”...

Patrick Mahoney, a San Francisco Juvenile Court judge, said competency had become a national issue. “What is happening is not unique to San Francisco,” he said. “This issue is being raised in every jurisdiction where I’ve had the opportunity to speak with judges.”...

Mr. Beckwith handled a case last year that involved a 12-year-old boy who was arrested for robbery twice in seven months.  Both times the boy was released because of incompetence.  Despite a court-ordered treatment plan, Mr. Beckwith said, most of the remediation services never arrived.  When the boy was arrested a third time last December, the judge placed him in juvenile hall, where he has been for more than six months.

After seeing that the boy had not received adequate counseling while incarcerated, Mr. Beckwith said he would never question competency again.  “I don’t care if the client is standing there blubbering, because they lock them up, proceedings are suspended, and they don’t get services,” he said.  “You fight like hell to get your kid into some kind of a program but for the average kid it’s not going to happen.”