Sentencing Law and Policy

Ohio getting tough on no-snack-sharing rules

I can sleep a little sounder after reading this local article about how tough my state is on its miscreants:

He slept through a fire drill, had loose tobacco in his possession and didn't show up for kitchen duty.  Then Timothy E. Caudill shared a Little Debbie snack cake with another inmate at a correctional facility in southeastern Ohio.  That was the last straw.

The 21-year-old was kicked out of the residential community corrections program that was a requirement of his probation.  And he could go to prison.  That is absurd, said Caudill's attorney, Claire "Buzz" Ball. "Everybody talks about prison overcrowding.  My God, you have to send some guy to prison for sharing a snack?" Ball said.

Vinton County Prosecutor Timothy P. Gleeson has asked Common Pleas Judge Jeffrey Simmons to revoke Caudill's probation and put him in prison.  Simmons is expected to rule soon on the request, which he considered at a hearing April 16.  The prosecutor wants Caudill put in prison for nine months.

With credit for 105 days served at the SEPTA Correctional Facility, he would serve nearly six more months.  Caudill's attorney has asked the judge to keep Caudill on probation or send him to the jail in Athens County, which costs $20 a day less than a state prison. Keeping Caudill out of prison would leave cell space for a more serious offender, Ball said. "My God, over a 50-cent cake, the state would spend $12,600 for six months," Ball said.

Caudill received a sentence of three years' probation Oct. 1, convicted last year of breaking and entering Krazy Katie's, a bar along Rt. 93 just south of McArthur, the Vinton County seat.  He was placed in SEPTA, a community corrections residential program in Nelsonville, on Oct. 10.  The 64-bed program, which offers drug treatment, work training and counseling, imposes strict rules.

Caudill bought the Little Debbie from the vending machine and then knowingly shared it with a fellow inmate who was on restriction and wasn't allowed access to the vending-machine snacks, said Bob Eaton, operations manager at SEPTA.

I wonder if Ohio parents and teachers realize that, when they encourage children to share at home and at school, they are preparing the kids for a life of crime.

New HRW report assailing juve LWOP in California

As detailed in this press statement, today a new report was released by Human Rights Watch calling upon the California legislature to "pass a law this month to end the sentencing of children to prison for life with no possibility of parole."  The report is entitled "When I Die, They'll Send Me Home: Youth Sentenced to Life without Parole in California," and it can be accessed in various ways from this link.  Here is the start of the report's summary:

Approximately 227 youth have been sentenced to die in California's prisons. They have not been sentenced to death: the death penalty was found unconstitutional for juveniles by the United States Supreme Court in 2005. Instead, these young people have been sentenced to prison for the rest of their lives, with no opportunity for parole and no chance for release.  Their crimes were committed when they were teenagers, yet they will die in prison. Remarkably, many of the adults who were codefendants and took part in their crimes received lower sentences and will one day be released from prison.

In the United States at least 2,380 people are serving life without parole for crimes they committed when they were under the age of 18.  In the rest of the world, just seven people are known to be serving this sentence for crimes committed when they were juveniles.  Although ten other countries have laws permitting life without parole, in practice most do not use the sentence for those under age 18. International law prohibits the use of life without parole for those who are not yet 18 years old.  The United States is in violation of those laws and out of step with the rest of the world.

Some recent related posts on juve life sentences:

• Nebraska working to reform juve LWOP sentences
• NYTimes coverage of very young lifers
• Juves serving life terms
• Fascinating juve clemency development in Colorado
• Life without parole for juvenile may be cruel, but it is not unusual
• The next issue in sentencing of juveniles?
• California considering eliminating LWOP for juveniles
• Forthcoming PBS program "When Kids Get Life"
• Does Roper suggest young juve LWOP is unconstitutional?

Genarlow Wilson headed to college

I was pleased to see this news report from Atlanta providing an update on the state and fate of Genarlow Wilson.  Here are highlights:

In his two years in prison, Genarlow Wilson did a lot of reading. One of his favorite books: Rick Warren's "The Purpose Driven Life." The title could not be more appropriate for the next chapter in Wilson's highly publicized young life.

Nearly three months out of prison for committing a sex act with a teenager, Wilson, 21, plans to move into a dormitory at Morehouse College this weekend. He will live and study for free, thanks to the Tom Joyner Foundation, an educational nonprofit founded by the nationally syndicated radio personality. The foundation announced Thursday that it will cover the cost of tuition, room and board and books....

"I've been wanting to go to college for so long," said Wilson, who wants to major in sociology or education, with a minor in history. "I want to study and learn so I can be a mentor for others. It was very generous for [Joyner] to do that for me. I won't let him down."...

Wilson was released from prison Oct. 26 after the Georgia Supreme Court ruled that his 10-year sentence for having consensual oral sex with a 15-year-old girl was "cruel and unusual punishment." Wilson, who was 17 at the time of the incident, was convicted of felony aggravated child molestation. At the time, state law mandated a minimum 10-year sentence for the crime. The Legislature eventually changed the law to make such cases misdemeanors when they involved teenagers close in age....

Despite his ordeal, Wilson said he has no regrets. "I'm not mad about anything that happened, really," said Wilson, who now lives in Cobb County. "It helped me grow as a person, made me stronger, made me more ambitious. "I was at my lowest point in life. Now everything I wanted to do can finally happen."

I could not be happier that the Wilson story now has this happy ending; of course, there can be a lot more to the story in the years ahead.  I hope that Wilson might get seriously involved in sentencing reform movements because his name and his story alone can help a lot of politicians and voters understand the harms of — and the challenges to undo — extreme mandatory minimum sentencing provisions.

Fascinating proportionality opinion from Oregon court

A helpful reader alerted me to a fascinating opinion from the Oregon Court of Appeals in Oregon v. Rodriguez, No. A131050 (Or. Ct. App. Dec. 26, 2007) (available here).  Both the underlying facts and the legal discussion in this case are noteworthy, and these lengthy excerpts provide only a small flavor of an opinion worth reading in full:

In early 2004, defendant [Victoria Rodriguez] was employed by the Hillsboro Boys and Girls Club to work with at-risk youths....  The victim was a member of the club....  On February 14, 2005, a staff member ... saw defendant and the victim in the game room at the club. There were approximately 30 to 50 youths and at least one other staff member in the room.  The victim, who had since turned 13, was sitting on a chair.  Defendant, who had since turned 25, was standing behind him, caressing his face and pulling his head back; the back of his head was pressed against her breasts.... The contact lasted approximately one minute....

Defendant was eventually charged with first-degree sexual abuse based on the incident.  A jury found defendant guilty....  At sentencing, the prosecutor asked the court to impose the 75-month sentence prescribed by ORS 137.700 (commonly referred to as "Measure 11").  Defendant objected, arguing that the Measure 11 sentence would be unconstitutionally excessive.  Numerous family members, friends, and coworkers testified in support of defendant.  The court agreed with defendant that a 75-month sentence would be cruel and unusual.  The court observed that defendant had no prior criminal record and that she had "lived an exemplary life" and had "really made a very positive impact into the lives of apparently many children * * *." It further noted that the touching occurred "in a crowded room, over clothing, [and was] not prolonged."  The court concluded that a 75-month sentence "just cries out" as being shocking to any reasonable person.  It imposed a 16-month sentence.  This appeal followed....

The state contends, among other things, that, given the nature of the relationship between defendant and the victim, the 75-month sentence mandated by Measure 11 would not shock the moral sense of all reasonable people....  We agree with the state that, given the nature of the relationship between defendant and the victim, there can be no doubt that the Measure 11 sentence would not shock the moral sense of all reasonable people.  It is undisputed that the victim was young and vulnerable, a prototypical "at-risk" youth. Defendant was in a position of trust and responsibility, akin to that of a teacher or youth counselor, charged with helping children make appropriate behavioral choices.  By engaging in sexual conduct with the victim, defendant seriously abused that trust.

In short, we cannot say that the 75-month sentence required under Measure 11 would shock the moral sense of all reasonable people as to what is right and proper under the circumstances.  It follows that the trial court erred in refusing to impose that sentence.

Weldon Angelos files 2255 motion

Regular readers will recall the name Weldon Angelos; Angelos faced a mandatory minimum sentencing term of 55 years following three small hand-to-hand marijuana sales.  Some months ago, Weldon's sister asked if I would help with his 2255 motion.  Aided by a great legal team working pro bono, this motion was completed and filed in federal district court today.  The full 50-page motion, which makes an array of constitutional arguments, can be downloaded here:

Download angelos_2255_motion.pdf

Because I am essentially counsel of record, I do not plan to discuss or debate the merits of the motion on this blog.  But I cannot help but use this forum to try to solicit amici support.  Persons concerned with any number of criminal justice issues — ranging from extreme mandatory minimum sentences, prosecutorial charging and bargaining practices, convictions based solely on informant testimony, the reach of the Second, Fifth, Sixth and Eighth Amendments and principles of equal justice — should find the Angelos case interesting and perhaps worthy of some "friendly" brief writing.

UPDATE:  The Salt Lake Tribune reports on the filing in this article.

Former border agents Ramos and Compean having appeal heard today

As highlighted in media coverage linked here by How Appealing, a Fifth Circuit panel will hear today the appeal of former U.S. Border Patrol agents Ignacio Ramos and Jose Compean, who were sentenced to terms of 11 and 12 years of imprisonment for shooting an illegal alien drug smuggler.  As detailed in a series of prior posts, this case has generated lots of political controversy and the severity of the sentences are part of the reason for the case garnering so much attention.  I do not think the appeal is focused on the sentencing terms, but prominent Senators from both parties (Diane Feinstein and Jon Cornyn) have already formally requested that President Bush commute the sentences of Ramos and Compean.

Some prior posts about the Border Agents case:

• Bipartisan call for commuting border agent sentences
• Reports on Senate hearing on Border Agent case
• The furor over border agents' long sentences
• Equal justice or just the realities of ratting out?
• Using the border agent case as a catalyst for federal sentencing reform
• Harsh border agent sentences producing half-truths

Judge Professor Paul Cassell still speaking out about unfair sentencing

This article from the Deseret Morning News, headlined "Former federal judge is striving for balance," catches up with former federal judge Paul Cassell now that he has been off the bench and back in the academy for a few weeks. Here are some snippets with a sentencing focus:

Sitting in his temporary office at the S.J. Quinney College of Law, Cassell told the Deseret Morning News that, as a federal judge, he felt there were several areas in federal law that were out of balance, particularly in the areas of minimum-mandatory sentencing and prosecution of some illegal immigrants. He saw some aspects of federal law caught in a vortex of political competitiveness for tougher sentences pushed by members of Congress....

"There's a kind of ratchet effect where the Republicans will say, 'We want a five-year mandatory minimum sentence,' and Democrats will say, 'We'll up you, we want a 10-year mandatory minimum sentence,' and you have people ratcheting up sentences to the point where any reasonable observer would think we've gone too high, but there's no political incentive to undo the mischief." Cassell said, in his mind, it takes political courage to step up and say the punishment does not fit the crime....

Cassell said he found himself questioning some laws at each turn. "I felt like it was proper judicial role to ask questions, even if we weren't necessarily charged with fixing the problem," he said. But he wanted to do more — he wanted to make a change. Being a federal judge, he couldn't do that. "One of the frustrations about being a trial court judge is that you never set broad principles of law; of course, that's reserved for the appellate courts. ... When I was there for 5 1/2 years, I began to think that maybe I would have more effect in moving the law in a way that I think is desirable by doing appellate litigation." Becoming a legal advocate is a better fit, he said. "I felt like for the rest of my life, I wasn't sure I could stay in one place doing one kind of thing. There were some issues I wanted to pursue, particularly working on crime victims' rights, which is an area that I felt very passionately about."

Traditionally, criminal cases involve two parties: the state and the defendant. But a growing trend in courts is to give the victims of crimes more of a voice in cases. In addition to teaching at the U., Cassell plans to work with a Washington, D.C., group that deals with crime victims' rights. It seems being a voice for balance is innate in Cassell.

One of the last things he did as a federal judge is speak out on the issue of sentencing guidelines for crack cocaine. As chairman of the Judicial Conference's Criminal Law Committee, Cassell said he spoke for the judiciary when he sent a letter to the president and Congress supporting the Federal Sentencing Commission's recommendation to reduce sentences for crack cocaine possession versus powder. Such sentences bear a 100-to-1 ratio to sentences for powder cocaine. "The differences between crack and powder cocaine penalties have been hurting the federal judiciary's credibility in minority communities, particularly in the African-American communities, who view the differences as racially motivated," Cassell said.

Why so much fear about a robust Eighth Amendment doctrine?

I am surprised and disappointed to see a few academic bloggers I respect expressing reservations about the Georgia Supreme Court's application of the cruel and unusual punishments clause in the Wilson case.  Specifically, Eugene Volokh has this to say:

I think there are institutional problems with courts’ evaluating the length of confinement under the Cruel and Unusual Punishment Clause; it’s hard to see a good legal rule that courts can sensibly apply in a wide range of cases, and to my knowledge there isn’t the sort of textual or original meaning evidence that strongly points to requiring courts to engage in such a mushy judgment.

And Laura Appleman adds this:

If the claim of cruel and unusual punishment is used more frequently, and in less dire cases than it has traditionally been used (i.e., death penalty cases), are we weakening the doctrine?  I'm not arguing that Genarlow Wilson deserved to remain in jail -- his 10 year sentence was ridiculous on its face.  But I'm a little nervous about using the 8th Amendment as a tool to free him.  Wilson's case was arguably a problem of proportionality -- isn't using the 8th Amendment to free him like using a battering ram when a kick or two would do?

I just do not get these sorts of concerns.  Let's start with Eugene's points.  Why does he or others think the Eighth Amendment's prohibition on "cruel and unusual punishments" is any more "mushy" or less subject to sound judicial line-drawing than the Fourth Amendment's prohibition on "unreasonable searches and seizures" or the Fifth Amendments requirements of "due process" and "just compensation."  Of course, one might contend that all these vague standards defy effective constitutional line-drawing.  But, if one excepts the appropriateness of courts drawing hard lines when interpreting other vague Amendments, I do not quite understand why the protections of the Eighth Amendment should evaporate once a person gets sentenced to a term of confinement. 

Laura raises related issues that also make me scratch my head: for Genarlow Wilson, another 7 years in prison seems pretty dire.  I know everyone thinks "death is different," but many defendants on death row bringing Eighth Amendment claims are going to die in prison as old men before appeals are exhausted.  But, for Genarlow Wilson, this case essentially concerned whether he was going to get to be a free man in his 20s (which is a probably a decade that few adults would want to have spent locked up in a prison).  Though others may disagree, but I am much more eager to use a battering ram for the likes of Genarlow Wilson than for the likes of Ted Bundy.

Finally, Eugene suggests a focus on the text of the Eighth Amendment (which few really do).  As the Wilson majority adroitly notes, statistics suggest that 7.5 million teenagers are involed each year in the specific offense behavior that resulted in 10 years in prison.  Can anyone argue (without using legalese) that it is not "cruel and unusual punishment" for Genarlow Wilson to be only one of this massive population forced to serve 10 years locked in a small cage for this behavior?

Split justice for Genarlow Wilson from the Georgia Supreme Court

As detailed in breaking news stories from the Atlanta Journal-Constitution and from the AP, theGeorgia Supreme Court this morning ordered the release of Genarlow Wilson, the young man who has been serving a 10-year sentence for consensual oral sex. The decision divided the state justices 4-3, but ultimately upholds county judge's ruling that the sentence constituted cruel and unusual punishment. The ruling is available at this link, and the court also has this news release summarizing the decision.  Here is how the opinion begins:

In Case No. S07A1481, the appellant, Warden Carl Humphrey, appeals from the grant of habeas corpus relief to the appellee, Genarlow Wilson, by the Superior Court of Monroe County (hereinafter referred to as the “habeas court”). For the reasons that follow, we conclude that the habeas court properly ruled that Wilson’s sentence of ten years in prison for having consensual oral sex with a fifteen-year-old girl when he was only seventeen years old constitutes cruel and unusual punishment, but erred in convicting and sentencing Wilson for a misdemeanor crime that did not exist when the conduct in question occurred. Because the minimum punishment for the crime for which Wilson was convicted constitutes cruel and unusual punishment, this case must be remanded to the habeas court for it to enter an order reversing Wilson’s conviction and sentence and discharging him from custody.  Accordingly, in Case No. S07A1481, we affirm the habeas court’s judgment in part and reverse it in part. 

In Case No. S07A1606, Wilson appeals the denial, by the Superior Court of Douglas County (hereinafter referred to as the “trial court”), of his motion for release on bail during the pendency of the warden’s appeal in Case No. S07A1481.  Because the trial court properly denied Wilson’s motion for bail, we affirm the trial court’s judgment.

Spotting the many statutory errors in Peltier

Commentors here have done a great job highlighting the practical craziness of the Fifth Circuit's adoption of a  "plain error" approach to reasonableness review in US v. Peltier, No. 05-30440 (5th Cir. Oct. 23, 2007) (available here).  But the problems with Peltier run deeper: at the most fundamental level, the Fifth Circuit's approach seems to misunderstand that reasonableness review was embraced in the Booker remedy to "iron out sentencing differences," not simply to protect a defendant's rights.  The whole goal of reasonableness review emphasized by the Booker remedial opinion is undermined by affirming unreasonable sentences because errors are not plain enough. 

Moreover, spotting the many statutory errors in Peltier would make for a good exam in my sentencing classes.  Here are just a few I saw based on a quick read:

1.  Peltier asserts in a footnote that "reasonableness has become ... a substantive standard to be applied by the district court," but that claim transgresses the congressional directive in section 3553(a), which states clearly that a sentencing court "shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth" in 3553(a)(2).

2.  Peltier affirms a statutory maximum sentence of 10 years for a defendant who pleaded guilty to a not-particularly-serious version of felon-in-possession (the defendant had a shotgun in his shed).  Given the requirement in 3553(a)(3) to consider "the kinds of sentences available" and in 3553(a)(6) to "avoid unwarranted sentence disparities," what is reasonable about the district court's determination that the defendant should get the highest legally available sentence for this type of crime (especially given that his guideline range was less than half as long)?

3.   Peltier makes much of the "weight given to the proper factor of need for treatment" to justify the district court's extra long prison term.  However, 18 USC 3582(a) plainly states that courts must "recogniz[e] that imprisonment is not an appropriate means of promoting correction and rehabilitation."

I could go on, but perhaps I need to first re-read Peltier to make sure I'm not overlooking reasons it might not be as bad as it seems.

Does Roper suggest young juve LWOP is unconstitutional?

The Baltimore Sun today has this effective editorial, entitled "Too young to die in prison," which builds off the Equal Justice Initiative's recent new report (available here, overviewed here) on life terms for offenses committed by young teenagers.  Here are snippets from the editorial:

Teenagers serving life sentences without the possibility of parole have been condemned to die in prison. It's a death sentence without an executioner, it's perilously close to cruel and usual punishment, and it simply shouldn't be allowed. 

States, such as Maryland, that let juveniles spend the rest of their lives behind bars ignore what researchers and others have shown to be true: These offenders lack the physical and emotional maturity to make rational decisions. A life sentence, with the appropriate parole eligibility requirements and restrictions, would keep these young criminals behind bars for a lengthy period and prevent their release until an appropriate time.

A report issued last week by the Alabama-based Equal Justice Initiative found that nationally, more than 2,225 juveniles, age 17 and younger, have received life without parole sentences. Of those, 73 were 13 or 14 — children by almost any measure — when they committed their crimes....

Their crimes may have been terrible, but there is a reason we have different systems for juvenile offenders: Society recognizes the differences between teenagers and adults; the key difference is that parts of their brains that control impulses, emotions and reasoning are less developed.

Juveniles are barred from buying cigarettes or beer; they can't enlist in the military and aren't supposed to watch R-rated movies unless accompanied by a parent or guardian.  And yet when they commit a serious crime, it's as if they have morphed into adults for purposes of their punishment....

The Supreme Court recognized all these differences when it barred the execution of juveniles, no matter the crime.  But a mandatory life sentence without possibility of parole is just as fatal in its way, and should be prohibited for the same reasons.

I share the editorial's instinct that a fair reading of Roper supports an argument that life without parole for young teenagers is constitutionally excessive under the Eighth Amendment.  I suspect others may agree.  But it is telling (and troubling) that these viable constitutional arguments on behalf of young offenders facing life terms have not gotten nearly the traction and attention — from courts, the media or academics — that has been given to older offenders facing lethal injections.

Some related posts:

• NYTimes coverage of very young lifers
• Juves serving life terms
• Fascinating juve clemency development in Colorado
• Life without parole for juvenile may be cruel, but it is not unusual
• Teen crime, adult time in Colorado
• The next issue in sentencing of juveniles?
• Using Roper's focus on age in post-Booker sentencings
• California considering eliminating LWOP for juveniles
• Forthcoming PBS program "When Kids Get Life"

Commentaries and editorials on border agents case

A new week brings a new set of commentaries and editorials about the border agents case.  Interestingly, as the headlines below suggest, not everyone has the same perspective on this case:

Commentary here from Debra Saunders, "Where's George Bush: Free the Border Patrol Two"

Commentary here from Rick Lowry, "Justice demands sentence commutation for border agents"

Editorial here from the Houston Chronicle, "Border incident Inflexible sentencing law — not prosecutor — created long sentence for rogue border agents"

Editorial here from the Sacramento Bee, "Feinstein takes the low road with border agents: With a grandstanding hearing and a letter to Bush, senator stoops to tarnish -- herself"

Some prior posts about the Border Agents case:

• Will former border agents Ramos and Compean get a commutation?
• Bipartisan call for commuting border agent sentences
• Reports on Senate hearing on Border Agent case
• The furor over border agents' long sentences
• Equal justice or just the realities of ratting out?
• Using the border agent case as a catalyst for federal sentencing reform
• Harsh border agent sentences producing half-truths

Report on Genarlow Wilson argument in Georgia

The AP has this article providing the basics of today's argument before the Georgia Supreme Court in the Genarlow Wilson case.  Here are a few snippets:

Attorney General Thurbert Baker argues that the order to free Wilson, if upheld, could be used to help free some 1,300 child molesters from Georgia prison.  "We urge you to look beyond the confines of this case," Senior Assistant Attorney General Paula Smith told the court's seven justices Friday.

Wilson's lawyer, B.J. Bernstein, said that Wilson's decade-long mandatory sentence violated the constitutional ban on cruel and unusual punishment.  "Every day that a defendant spends in jail is a precious day in their life," Bernstein said.

The justices seemed to be wrestling with how to provide Wilson relief under the law. "We have a responsibility to enforce the law," Justice Robert Benham asked.  "Should we do that at the expense of fairness?"

How Appealing has more coverage of the argument at this link.

Bipartisan call for commuting border agent sentences

Especially in these partisan times, it is encouraging to see bipartisanship on any issue.  And, as detailed in this Lou Dobbs commentary, the extreme sentences for former border agents Ignacio Ramos and Jose Compean has brought leading Senators from both sides of the aisle together:

There was an unusual spectacle in the nation's capital Tuesday, downright rare, in fact: U.S. Senators seeking truth, and justice, and taking action.  And they deserve great credit and thanks. The Senate Judiciary Committee hearing, led by Dianne Feinstein, focused on the reasons for the prosecution of two Border Patrol agents now serving long sentences in federal prison.  Border Patrol Agents Ignacio Ramos and Jose Compean were given terms of 11 and 12 years respectively on their convictions for shooting an illegal alien drug smuggler. Senator Feinstein, and Senators Jeff Sessions, John Cornyn, Jon Kyl and Tom Coburn demanded answers of U.S. Attorney Johnny Sutton, who chose to prosecute Compean and Ramos and give that illegal alien drug smuggler blanket immunity to testify against the men....

Senator Feinstein and Senator Cornyn announced Tuesday night on our broadcast that they have decided to request that President Bush commute the sentences of Ramos and Compean.

Some prior posts about the Border Agents case:

• Reports on Senate hearing on Border Agent case
• The furor over border agents' long sentences
• Equal justice or just the realities of ratting out?
• Using the border agent case as a catalyst for federal sentencing reform
• Harsh border agent sentences producing half-truths

Reports on Senate hearing on Border Agent case

Reports from the Houston Chronicle, from the AP, from The Hill and from The Corner at NRO provide some highlights from Tuesday's Senate Judiciary Committee hearing examining the prosecution and sentencing of former border agents Ignacio Ramos and Jose Compean.  Also available at this official site are links to the witnesses' written testimony and an archived webcast of the hearing.

Some prior posts about the Border Agents case:

• The furor over border agents' long sentences
• Equal justice or just the realities of ratting out?
• Using the border agent case as a catalyst for federal sentencing reform
• Harsh border agent sentences producing half-truths

Senate hearing on Border Agent prosecutions

As detailed at this official site, the Senate Committee on the Judiciary has scheduled a "Hearing to Examine the Prosecution of Ignacio Ramos and Jose Compean" for the morning of Tuesday, July 17, 2007.  Notably, Senator Dianne Feinstein is slated to preside. 

As I have explained in many prior posts (some of which are linked below), I think the prosecution and sentencing of these former border agents  spotlight the many flaws with mandatory sentencing provisions and the severe penalties that some defendants receive largely for exercising their right to go to trial rather than pleading guilty.  I am hopeful that these sentencing issues will be a big part of the Senate hearing.

Some prior posts about the Border Agents case:

• The furor over border agents' long sentences
• Equal justice or just the realities of ratting out?
• Using the border agent case as a catalyst for federal sentencing reform
• Harsh border agent sentences producing half-truths
• A valuable (but disconcerting) perspective on the border case
• Still more buzzing about border agents' sentences
• Senator Feinstein jumps into border agent case
• Friday forum: rate the injustices
• Interesting federal focal point for pardon/clemency debate
• Giving voice to Virginia Orwig

Prosecutors gone wild

This AP story chronicles the latest saga in the sad tale that is the Genarlow Wilson case (details in this archive) out of Georgia.  Here are snippets:

David McDade has handed out some 35 copies of a video of teenagers having sex at a party.  McDade is no porno kingpin, but a district attorney.  And he says Georgia's open-records law leaves him no choice but to release the footage because it was evidence in one of the state's most turbulent cases — that of Genarlow Wilson, a young man serving 10 years in prison for having oral sex with a girl when they were teenagers.  McDade's actions have opened him up to accusations that he is vindictively misusing his authority to keep Wilson behind bars — and worse, distributing child pornography.

UPDATE:  I see two remarkable new posts at Above the Law suggesting that Mr. McDade has a track record that should make good prosecutors cringe:

• Sex, Laws, and Videotape: Is David McDade The New Michael Nifong?
• McDade Has Been In Trouble Before

The saddest part of all this, of course, is that McDade continues to wreck havoc on Georgia justice while Genarlow Wilson remains behind bars.  It is a sad shame that Georgia's Attorney General and Governor are far less concerned about the unjustifiable activities of rogue prosecutors than about teenagers' consensual sexual activities.

Genarlow Wilson to remain in prison, despite ruling that his sentence is unconstitutional

Howard Bashman notes reports from the AP and from the Atlanta Journal-Constitution that a state judge has now ruled that Genarlow Wilson is not eligible for bond pending the state's appeal of a ruling that his sentence is unconstitutional.  As previously detailed here and here, lower court has already ruled that Wilson's original sentence was unconstitutional, although that ruling due to be review by the Georgia Supreme COurt in the fall (details here).

I do not quite understand why executive officials in Georgia believe it is necessary and appropriate — or even lawful — to keep Wilson in prison when the last state judge to review this case has declared Wilson's sentence unconstitutional.  I understand that the Georgia Attorney General regards the lower court's ruling as problematic.  But given that the AG apparently recognizes that Wilson presents no risk of flight or dangerousness, shouldn't he agree to Wilson's release pending appeal.  Indeed, might one argue that it is unconstitutional for the Georgia AG to continued Wilson's imprisonment under these circumstances?

Putting money where the sentencing injustice is

As detailed in articles appearing in USA Today and the Atlanta Journal-Constitution, a "New York investment manager and 10 of his friends have pledged $1 million in cash to try to win the release of a Georgia man imprisoned for a consensual sex act."  Here are more details from the USA Today article:

Genarlow Wilson, 21, is serving a 10-year sentence for receiving oral sex from a 15-year-old girl when he was 17.  He has been behind bars for more than 28 months.  Two weeks ago, a Monroe County judge ordered his release.  Because Georgia Attorney General Thurbert Baker appealed, however, Wilson remains in prison.

"A miscarriage of justice has occurred here, yet he's still in jail," says Whitney Tilson, a mutual and hedge fund manager who will commit $100,000 of his own money to a bond fund for Wilson.  Tilson, who is founder and managing partner of T2 Partners Management LP and Tilson Mutual Funds, read about Wilson's case in December and thought his punishment was excessive.

Related posts will background on the Genarlow Wilson case:

• Genarlow Wilson prevails in state habeas appeal
• Snippets from the Wilson ruling from Georgia
• Georgia AG appeals to keep Genarlow Wilson locked up
• Genarlow Wilson faces at least another month in prison
• ESPN effectively covers Genarlow Wilson's sad saga
• Why isn't the severe Georgia sentence constitutionally problematic?

Notable coverage of Genarlow Wilson saga

Coverage of the Genarlow Wilson case continues to provide interesting food-for-thought.  Anyone following the Wilson case closely will definitely want to check out these two interesting articles:

• From the Fulton County Daily Report here, "Contrasting Cases Show Murkiness of Sex Law: Genarlow Wilson's win made the news, but another teen sex case looms."

• From the Atlanta Journal-Constitution here, "Girl's mother defends Wilson: Penalty too severe, and sex was consensual, she says; prosecutors suspect that defendants' supporters have been pressuring her."

Following up the AJC article, this AP article has now hit the wires, headlined "Prosecutor meddling in teen sex case?  Mother of girl changed statement to newspaper after visit by assistant DA."

UPDATE:  This AP story reports that "Georgia's Supreme Court agreed Thursday to hear the state's arguments for keeping in prison a man who had consensual sex with a 15-year-old girl when he was 17.  The story also provides more details about reactions to the case and the decision by the Georgia AG to appeal.

Parents start serving 27 months for serving alcohol at son's 16th birthday party

The Washington Post in this editorial, and David Bernstein here at The Volokh Conpirary, are justifiably spotlighting the apparent injustice in this story of two parents given 27-month(!) jail terms for having provided beer and wine at a backyard birthday party for their son when he turned 16. 

According to the Post editorial, the prosecutors "originally sought a three-month sentence," but apparently a juvenile court judge "originally imposed eight-year sentences" only an appeals court cut the sentence to the 27 months now to be served.

Commentors at Volokh indicate that the parents' wrongdoing went beyond just serving alcohol.  But, geez, wouldn't the three-month sentence (or even six months or nine months) sought by prosecutors have been sufficient?  I have long thought that any sentence more than twice what a prosecutor requests should be considered presumptively (though not per se) unreasonable. 

More details about this case and related matters are available in this cover article from a publication called "The Hook."  The article spotlights that the long sentence given to the parents should have a profound deterrence effect, though I'd think a shorter sentence could do the trick.  Can anyone suggest reasons why such a long jail sentence is necessary under these circumstances?

Genarlow Wilson faces at least another month in prison

As detailed in this Atlanta Journal-Constitution article, despite a big win in his state habeas action overturning his initial sentence, "Genarlow Wilson will remain behind bars at least until next month, when a judge will decide whether he should be released from prison pending an appeal."  Here are some more details:

Wilson, now 21, moved a step closer to freedom Monday when Monroe County Superior Court Judge Thomas H. Wilson granted his petition to throw out his 10-year prison sentence.  The judge agreed the sentence "would be viewed by society as 'cruel and unusual' in the constitutional sense of disproportionality." The judge also ordered him freed from prison and changed his felony conviction to a misdemeanor without the requirement that he register as a sex offender.

Within hours, however, state Attorney General Thurbert Baker filed notice that he would appeal the ruling to the Georgia Supreme Court.  Baker is arguing the judge overstepped his authority. Several civil rights activists demonstrated outside Baker's office Monday, calling on him to back off his appeal or resign. "I think he should be admired for standing up in the face of all that and doing his job," [Douglas County District Attorney David] McDade said. "His sworn duty is to protect all Georgians."

Related posts will background on the Wilson case:

• ESPN effectively covers Genarlow Wilson's sad saga
• Why isn't the severe Georgia sentence constitutionally problematic?
• Genarlow Wilson prevails in state habeas appeal
• Snippets from the Wilson ruling from Georgia
• Georgia AG appeals to keep Genarlow Wilson locked up

Georgia AG appeals to keep Genarlow Wilson locked up

This new CNN article disappointingly reports that the Attorney General of Georgia "quickly filed a notice of appeal, keeping Genarlow Wilson in prison for the time being" in the wake of the state court ruling earlier today reducing his crime and sentence (basics here and here).  Here are more details:

The prosecutor's move brought an abrupt halt to the jubilation Wilson's mother, Juannessa Bennett, and his attorney, B.J. Bernstein, were feeling, and the plans they were making for Bennett to be reunited with her son.  "It is extremely, extremely disturbing that the attorney general would take this action now," Bernstein said, adding that she did not know what message "he's trying to send" or "who he's representing."

In a written statement, Georgia Attorney General Thurbert Baker said he filed the appeal to resolve "clearly erroneous legal issues," saying that while the judge did have the authority to grant habeas relief, he did not have the authority "to reduce or modify the judgment of the trial court."  Separately, Baker noted that Douglas County recently had offered a plea deal "that would have allowed Genarlow Wilson to plead to First Offender Treatment, which would mean that he would not have a criminal record nor would he be subject to registering on the sex offender registry once his sentence had been completed."

I would be interested to hear reactions from current and former prosecutors about the Georgia AG's decision to so swiftly seek an appeal.  I also wonder, if Baker is comfortable with a plea deal that gets close to the same result as the court ruling, why the rush to appeal?

Snippets from the Wilson ruling from Georgia

The Atlanta Journal-Constitution now has this coverage of the state court ruling reducing the crime and sentence of Genarlow Wilson (basics here).  There is a written opinion supporting the rule, and here are inspiring snippets:

In the Petitioner's case, the imposition of the rnandatory minimum 10-year prison sentence without parole and sex offender registration for consensual oral sex between teenagers would be viewed by society as "cruel and unusual" in the constitutional sense of disproportionality, especially in light of Petitioner's having never been convicted of a prior crime....

If this Court, or any Court, cannot recognize the injustice of what has occurred here, then our court system has lost sight of the goal our judicial system has always strived to accomplish — Justice being served in a fair and equal manner.

When I first heard about the Wilson case last December, I explained here and here why I thought Genarlow had a viable Eighth Amendment claim.  I am glad a state judge in this case agreed.  Now if the state prosecutors could have the good sense not to bother with an appeal.

Genarlow Wilson prevails in state habeas appeal

Good news for folks like me hoping that justice would prevail in the Genarlow Wilson case.  Here is the early report from the AP of today's major development in the case:

A judge on Monday voided a 10-year sentence for a man accused of having consensual oral sex with a 15-year-old girl when he was 17.  He instead gave Genarlow Wilson a 12-month misdemeanor sentence with credit for time already served.  The state is likely to appeal the ruling.

Wilson's original sentence, for aggravated child molestation, was widely criticized on the grounds it was grossly disproportionate to the crime, and state lawmakers later passed a law to close the loophole that led to the 10-year sentence. 

Wilson, now 21, has already served more than 27 months.  He could remain behind bars while the appeal proceeds.

I am not quite sure why (or even how) Wilson can remain incarcerated if he has now been given a sentence that has been fully served.  I suppose there may be a mechanism under state law for prosecutors to stay the sentence change ordered today, but I sure hope Wilson gets his release very soon.  He certainly does not seem like a flight risk or a danger to the community.

Related posts will background on the Wilson case:

• ESPN effectively covers Genarlow Wilson's sad saga
• Why isn't the severe Georgia sentence constitutionally problematic?
• Another editorial urging release of Genarlow Wilson
• NYT adds to chorus calling for Genarlow Wilson to be freed
• Genarlow Wilson seeking state habeas relief
• Genarlow Wilson state habeas appeal update

More strong calls for justice for Genarlow Wilson

Because I was in Atlanta this morning for an Eleventh Circuit argument (reported by the media here and here), I saw the print copy of this extended editorial in the Atlanta Journal-Constitution entitled, "Teen's search for justice: Genarlow Wilson's 10-year sentence for consensual sex ought to be thrown out by judge."  TChris at TalkLeft here discusses the editorial and the fact that former President Jimmy Carter has spoken out in favor of justice for Genarlow.  A ruling on Wilson's state habeas action is expected on Monday.

Recent related posts:

• ESPN effectively covers Genarlow Wilson's sad saga
• Why isn't the severe Georgia sentence constitutionally problematic?
• Another editorial urging release of Genarlow Wilson
• NYT adds to chorus calling for Genarlow Wilson to be freed
• Genarlow Wilson seeking state habeas relief
• Genarlow Wilson state habeas appeal update

Genarlow Wilson state habeas appeal update

A scheduled hearing on Genarlow Wilson's state habeas action has the Atlanta Journal-Constitution again discussing this remarkable case with this article, entitled "Sex landed him in prison; will petition bail him out?", and this op-ed by columnist Cynthia Tucker, entitled "Genarlow Wilson should be free."  For a lot more background, check out these prior posts about the case:

• ESPN effectively covers Genarlow Wilson's sad saga
• Why isn't the severe Georgia sentence constitutionally problematic?
• Another editorial urging release of Genarlow Wilson
• NYT adds to chorus calling for Genarlow Wilson to be freed
• Genarlow Wilson seeking state habeas relief

UPDATE:  This AP story provides a brief account of the argument in the Wilson case today, but it has no information about whether and when a ruling on the merits might be forthcoming.

MORE:  This updated AP piece indicates that the state judge "says he'll make a decision by Monday in the case of a Georgia man who was sentenced to 10 years in prison for having consensual oral sex with a 15-year-old when he was two years older than she was."

Will Genarlow Wilson get Duke justice?

The sad Genarlow Wilson case from Georgia (background here and here and here) is generating more press in the wake of the upstanding way in which North Carolina's Attorney General admitted mistakes in the Duke case.  Here is some of the latest coverage and commentary:

• From the New York Times, "Dropped Duke Charges Renew Hope in Georgia"
• From the Atlanta Journal-Constitution, "Break legal ranks to right a wrong"

Some recent related posts:

• ESPN effectively covers Genarlow Wilson's sad saga
• Why isn't the severe Georgia sentence constitutionally problematic?
• Another editorial urging release of Genarlow Wilson
• NYT adds to chorus calling for Genarlow Wilson to be freed
• Genarlow Wilson seeking state habeas relief