Monday, December 03, 2007

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:

December 3, 2007 in Examples of "over-punishment" | Permalink | Comments (4) | TrackBack

Friday, November 23, 2007

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.

November 23, 2007 in Examples of "over-punishment" | Permalink | Comments (3) | TrackBack

Friday, October 26, 2007

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?

October 26, 2007 in Examples of "over-punishment" | Permalink | Comments (30) | TrackBack

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.

October 26, 2007 in Examples of "over-punishment" | Permalink | Comments (19) | TrackBack

Wednesday, October 24, 2007

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.

October 24, 2007 in Examples of "over-punishment" | Permalink | Comments (4) | TrackBack

Tuesday, October 23, 2007

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:

October 23, 2007 in Examples of "over-punishment", Offender Characteristics, Scope of Imprisonment | Permalink | Comments (26) | TrackBack

Monday, July 23, 2007

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:

July 23, 2007 in Examples of "over-punishment" | Permalink | Comments (0) | TrackBack

Friday, July 20, 2007

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.

July 20, 2007 in Examples of "over-punishment" | Permalink | Comments (3) | TrackBack

Wednesday, July 18, 2007

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:

July 18, 2007 in Clemency and Pardons, Examples of "over-punishment", Scope of Imprisonment, Who Sentences? | Permalink | Comments (13) | TrackBack

Tuesday, July 17, 2007

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:

July 17, 2007 in Examples of "over-punishment" | Permalink | Comments (0) | TrackBack

Sunday, July 15, 2007

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:

July 15, 2007 in Examples of "over-punishment" | Permalink | Comments (0) | TrackBack

Thursday, July 12, 2007

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:

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.

July 12, 2007 in Examples of "over-punishment" | Permalink | Comments (8) | TrackBack

Wednesday, June 27, 2007

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?

June 27, 2007 in Examples of "over-punishment" | Permalink | Comments (11) | TrackBack

Tuesday, June 26, 2007

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:

June 26, 2007 in Examples of "over-punishment" | Permalink | Comments (1) | TrackBack

Thursday, June 14, 2007

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:

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.

June 14, 2007 in Examples of "over-punishment" | Permalink | Comments (6) | TrackBack

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

Cover_large 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?

June 14, 2007 in Examples of "over-punishment" | Permalink | Comments (7) | TrackBack

Wednesday, June 13, 2007

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:

June 13, 2007 in Examples of "over-punishment" | Permalink | Comments (4) | TrackBack

Monday, June 11, 2007

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?

June 11, 2007 in Examples of "over-punishment" | Permalink | Comments (21) | TrackBack

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.

June 11, 2007 in Examples of "over-punishment" | Permalink | Comments (8) | TrackBack

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:

June 11, 2007 in Examples of "over-punishment" | Permalink | Comments (6) | TrackBack

Friday, June 08, 2007

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:

June 8, 2007 in Examples of "over-punishment" | Permalink | Comments (1) | TrackBack

Wednesday, June 06, 2007

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:

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."

June 6, 2007 in Examples of "over-punishment" | Permalink | Comments (2) | TrackBack

Wednesday, April 18, 2007

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:

Some recent related posts:

April 18, 2007 in Examples of "over-punishment" | Permalink | Comments (2) | TrackBack

Friday, April 13, 2007

Genarlow Wilson seeking state habeas relief

The sad Genarlow Wilson case from Georgia (background here and here) is back in the news because, as detailed in this news story, Wilson's lawyer, BJ Bernstein "filed a petition for writ of habeas corpus Thursday with the Superior Court of Monroe County."  In addition, as detailed on this website, advocates for Wilson are hoping to leverage the events in the Duke rape case to get justice for Wilson.  Here's what the website says:

Yesterday we saw the Attorney General of North Carolina step forward as the chief law enforcement officer to correct an injustice by a district attorney in the Duke rape case. Genarlow Wilson now appeals to the Attorney General of Georgia, Thurbert Baker to use his power to act justly, and review and consent to Wilson's habeas petition.  As the guardian of justice in this State, we appeal to him to correct this grave injustice.

Makes sense to me.

Some recent related posts:

April 13, 2007 in Examples of "over-punishment" | Permalink | Comments (0) | TrackBack

Tuesday, April 03, 2007

More attention for Genarlow Wilson

I am pleased to see continued major media coverage of Genarlow Wilson's case (prior examples here and here).  Here are too more pieces complaining about the extreme sentence Wilson is serving for a consentual sexual encounter with another teenager:

April 3, 2007 in Examples of "over-punishment" | Permalink | Comments (1) | TrackBack

Thursday, March 29, 2007

A new website inspired by Genarlow Wilson

I have not blogged about the Genarlow Wilson case much lately because there has not been much to report.  Despite a flurry of media coverage calling for Wilson's release (details here and here), Georgia officials have not responded and Wilson is now deep into his third year in prison serving a 10-year sentence for a crime that Georgia law now classifies as a misdemeanor subject to only 12 months imprisonment.

Meanwhile, Wilson's case has inspired the creation of a new non-profit organizarion called "My 5th," which has this intriguing new website.  The website's home page states, "With this website, blog and workshops, MY 5th wants to prevent you from paying the price for not knowing the law!!!! Use the law, don't let it use you!!!".  An intriguing and diverse set of individuals are on My 5th's board, and Wilson's lawyer is listed as the president and founder of the organization.  Not suprisingly, Wilson's case is featured here on the My 5th site.

Some related Genarlow Wilson posts:

March 29, 2007 in Examples of "over-punishment" | Permalink | Comments (2) | TrackBack

Wednesday, March 28, 2007

A Texas juve case creating controversy

Thanks to posts at TalkLeft and Grits for Breakfast, I have become away of a controversial case of seemingly unduly severe juvenile punishment coming out of Texas.  This AP story has these highlights:

A teenager has been jailed for more than a year for shoving a teacher's aide at her high school, sparking anger and heightening racial tensions in rural East Texas.  Shaquandra Cotton, now 15, claims the teacher's aide pushed her first and would not let her enter school before the morning bell in 2005.

A jury convicted her in March 2006 on a felony count of shoving a public servant, who was not seriously injured.  The girl is in the Ron Jackson Correctional Complex in Brownwood, about 300 miles from her home in Paris....  Under the sentence handed down by Lamar County Judge Chuck Superville, she will remain at the facility until she meets state rehabilitation standards or reaches her 21st birthday.

But her family and civil rights activists say they want her home now. They are condemning the sentence as unusually harsh and say it shows a justice system that punishes young offenders differently, depending on their race.  Creola Cotton, Shaquandra's mother, and activists argue that while Superville sent Shaquandra to the state's juvenile prison system, he gave a white 14-year-old arsonist probation. As many as 400 people marched and rallied in Paris on Tuesday, the second such protest in as many weeks by civil rights groups.

Meanwhile, the Paris school district fiercely denied claims of racism and chided the girl's mother for "playing a game" to start controversy.... Creola Cotton is preventing the district from fairly defending itself by refusing to let the school district make her daughter's entire record public, [Paris school district attorney Dennis] Eichelbaum said. "Mrs. Cotton has been wrongfully attacking the character of the district," Eichelbaum said. "She's being disingenuous with regard to her daughter being an innocent child."...

Prosecutors say they offered Shaquandra a plea agreement that would have reduced the felony charge to a misdemeanor and given her two years' probation.  But Creola Cotton rejected the plea behalf of her daughter, prosecutors said.

The Dallas South Blog, whose author Shawn Williams comes from Paris, Texas, offers lots of comments on the case here and here and here.  Also, there is a blog, Free Shaquanda Cotton, which pleads "Please help me, Shaquanda Cotton, receive proper justice. Leave me notes of encouragement, donate to my trust fund, and spread the word!"  That blog has links to other media coverage of this case.

March 28, 2007 in Examples of "over-punishment", Race, Class, and Gender | Permalink | Comments (18) | TrackBack

Thursday, March 01, 2007

Request for hearings on the border agent case

According to this (partisan?) news report, "[t]hirty-eight Republican congressmen have written to Speaker of the House Nancy Pelosi asking for hearings to investigate the prosecution of Border Patrol agents Ignacio Ramos and Jose Compean, who are in prison for their actions in the shooting of a drug smuggler given immunity to testify against them."  Here are more details:

The sharply worded letter, sent Tuesday, is critical of the prosecutor, U.S. Attorney Johnny Sutton, and federal investigators. The congressmen say "serious questions remain unanswered by our federal government over the apparently misguided prosecution of two distinguished U.S. Border Patrol Agents, Ignacio Ramos and Jose Compean."  The letter further charges that relevant federal agencies have "delayed or denied" congressional requests for information and that "certain federal investigators have even misled us about the case."...

The letter also was addressed to Rep. John Conyers, D-Mich., chairman of the House Judiciary Committee; Rep. Bennie Thompson, D-Miss., chairman of the House Homeland Security Committee; and Rep. Henry Waxman, D-Calif., chairman of the House Oversight & Government Reform Committee. Among the Republican signatories are Reps. Ted Poe and John Culberson of Texas; Duncan Hunter, Dana Rohrabacher and Mary Bono of California; Dan Burton of Indiana; Frank Wolf of Virginia; and Tom Tancredo of Colorado.

As WND reported, Sen. Patrick Leahy, D-Vt., has given Sen. Dianne Feinstein, D-Calif., permission to investigate the prosecution and sentencing of Compean and Ramos.  Feinstein, who said she believes the sentences were "extreme," has postponed the Senate hearings, originally scheduled for Feb. 27.

Some recent related posts:

March 1, 2007 in Examples of "over-punishment" | Permalink | Comments (0) | TrackBack

Tuesday, February 27, 2007

Perhaps if Justices Kennedy and Breyer realized the world cares a lot...

about the cert denial in Berger (details here and here), the outcome might have been different.  Of course, notwithstanding Justice Kennedy's opinion in Roper and Justice Breyer's willingness to defend reliance on foreign precedents, it is unfair to assert that they would have voted for cert if they knew the cert denied would garner international attention.  (Moreover, it is possible that both Justices voted for cert but that there weren't enough other votes.) 

Nevertheless, I think it is notable that this afternoon I have been contacted by two members of the foreign press to talk about the Berger case.  Specifically, I just finished a long interview with a reporter from Brazil's Vision magazine, and in a few hours I will have the honor of doing an interview with BBC Radio 5Live, which is part of national talk radio in the UK.   (Perhaps this is a variation on the Greenhouse effect, since I believe Linda Greenhouse's kind use of my quote in her Berger story has led to my 15 seconds of international fame.)

Some related posts on the Berger case:

February 27, 2007 in Examples of "over-punishment" | Permalink | Comments (8) | TrackBack

Monday, February 26, 2007

More on the cert denied in Berger

Thanks to How Appealing, I see that the AP has a short piece and Reuters has a longer piece on the Berger cert denial.  (The case involves first-offender Morton Berger challenging his 200-year prison sentence for possessing child pornography (basics here, commentary here).)

In this earlier post I suggested that, though cert was denied today in the Berger case (recently discussed here), some Ninth Circuit precedents should perhaps give Morton Berger some hope for a federal habeas action.  But Orin and Kent in the comments rightly note that Morton Berger's case faces additional hurdle in habeas: the statutory limits on granting relief set out in the AEDPA.  (Of course, the Ninth Circuit has been know to find ways around AEDPA.  But it was because of habeas headaches that I believed SCOTUS should take up Berger's case on direct review.)

So here is my question to Orin and Kent and anyone else interested in playing along: 

What should Berger and his lawyer do now? 

Since Berger has already lost in the Arizona Supreme Court, I doubt state collateral review is likely to be successful.  I suppose Berger could and should seek a commutation from the Arizona governor or a retroactive change in the law from the Arizona legislature, but the Genarlow Wilson saga highlights that other branches are not so good at doing justice in cases of extreme sentencing.  So, is the cert denial the end of the line for Berger?

February 26, 2007 in Examples of "over-punishment" | Permalink | Comments (22) | TrackBack

Friday, February 23, 2007

Another chance for cert in Berger

In my punitive damages commentary here and here after the SCOTUS Philip Morris decision, I have suggested that Justices eager to constitutionally second-guess some harsh corporate punishments should also be willing to constitutionally second-guess some harsh individual punishments.  And a case now being reviewed by the Court — in which first-offender Morton Berger challenges his 200-year prison sentence for possessing child pornography (basics here, commentary here) — presents a unique opportunity for the Court (and its new Justices) to grapple with its confusing non-capital Eighth Amendment jurisprudence.

As detailed in this docket sheet, the Berger case was discussed by the Justices at conference last week and is now slated to be discussed again today.  For various reasons developed in prior posts, the Berger case seems like a great vehicle for the Court to explore its doctrines on what constitutes cruel and unusual punishment:

February 23, 2007 in Examples of "over-punishment" | Permalink | Comments (9) | TrackBack

Latest news and thoughts on Genarlow Wilson

ABC News has this long piece with background and the latest developments in the Genarlow Wilson saga.  The piece has me thinking again about the legality of Wilson's continued service of a 10-year prison sentence even though the Georgia legislature subsequently "reclassified Wilson's offense from a felony to a misdemeanor" for which the harshest sentence is a year in jail.

Consider this analogy.  Suppose the Maryland legislature repeals the state's death penalty, but does not address what to do about the nine persons current on Maryland's death row.  Would it be proper (or constitutional) for prosecutors to still seek the execution of these nine previously-convicted capital offenders? 

If it feels very wrong to imagine seeking the execution of previously convicted capital defendants after a legislative repeal of the death penalty, Genarlow Wilson's continued imprisonment should also feel very wrong.  Wilson has already served twice as long a sentence as Georgia law now currently provides for his crime.  I view continuing to imprison Wilson based on a conviction with a now-repealed sentencing term to be analogous to trying to execute a capital defendant even after a repeal of the death penalty.

Some related Genarlow Wilson posts:

UPDATE:  A loyal reader points to 1 U.S.C. § 109, a provision of federal law that states:

The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.

I guess that means that, in 2009, if President Hillary Clinton signs a bill passed by Congress to repeal the federal death penalty, Attorney General Bill Clinton can and should still seek the execution of the roughly 50 defendants on federal death row unless that legislation expressly provides for a different sentence for these previously convicted capital killers.

February 23, 2007 in Examples of "over-punishment" | Permalink | Comments (9) | TrackBack

Wednesday, February 21, 2007

Analogizing extreme punitive damages and extreme punitive sentences

My take on the Philip Morris decision has already generated many thoughtful comments, which prompt me to develop a bit more the analogies I see between extreme punitive damages and extreme punitive sentences.  Here goes:

1.  Both punitive schemes are authorized by legislatures.  Before a jury can impose extreme punitive damages, such damages have to be directly authorized or at least indirectly permitted by legislatures.  Legislatures can put caps on punitive damages.  The dissenters in Philip Morris likely believe that limits on punitive damages should come from democratic lawmaking and not from judicial constitutional creation.

2.  Extreme punitive outcomes are the product of case-specific decisionmakers gone wild.  Extreme punitive damages awards are typically the product of a particular jury deciding to bring the hammer down on a particular tortfeasor it does not like (for good or bad reasons).  Extreme punitive sentences are typically the product of a particular prosecutor deciding to bring the hammer down on a particular offender it does not like(for good or bad reasons). 

3.  The deep harms of extreme outcomes may come from the pressure to settle/plea.  A judgment of $80 million probably does not cause much of a blip in most major corporate balance sheets.  But, extreme awards drive up the costs of litigation and produce pressure on corporations to settle weak cases rather than run the risk of out-of-whack punitive damages.  Similarly, a harm of extreme sentences is that they are only imposed on defendants exercising their trial rights and ticking off prosecutors seeking a plea (see, e.g., Berger and Wilson and the border agent cases and just about every other out-of-whack criminal sentence).

4.  Judicial moderation of both types of extreme outcomes seems warranted in light of the Bill of Rights.  For the record, I am comfortable with some judicial regulation of extreme punitive damages awards.  Extreme out-of-whack jury awards surely can create real harms that legislatures will not always (and perhaps should not always) seek to address.  Extreme out-of-whack sentences surely can create real harms that legislatures will not always (and perhaps should not always) seek to address.

February 21, 2007 in Examples of "over-punishment" | Permalink | Comments (7) | TrackBack

Activist liberty: second guessing corporate punishment by state juries and courts in Philip Morris

I have never quite understood Justice Breyer's concept of active liberty, especially since the concept seems hard to square with Justice Breyer's antipathy toward the Apprendi-Blakely line of constitutional decisions.  And Justice Breyer's majority opinion for an unusual coalition of justices in the Philip Morris punitive damages case does not help me understand his vision constitutional adjudication.  But, I do understand some other important realities after Philip Morris:

1.   At least five members of the Supreme Court remain willing and perhaps eager to place significant constitutional limitations through the Due Process Clause on punitive damages awards.  And, since Justice Stevens notes that there is "little difference between the justification for a criminal sanction, such as a fine or a term of imprisonment, and an award of punitive damages," criminal defense attorney might look for ways to use Philip Morris when attacking certain sentencing outcomes.

2.  Philip Morris champions federal judicial regulatory power over the authority of state juries and courts.  In Philip Morris, a state jury decided that a corporation deserved to be punished to the tune of $79.5 million; Oregon state courts ultimately found this punishment to be justifiable.  But the five members of the Supreme Court essentially overruled these judgments while announcing a new judicially-created constitutional limit on punitive damages awards.

3.  The five Justice in the Philip Morris majority includes both Chief Justice Roberts and Justice Alito, but neither Justice Scalia or Justice Thomas.  If President Bush's goal truly was to appoint justices in the mold of Scalia and Thomas, Philip Morris would suggest he failed. 

4.  As I suggest in my initial post on Philip Morris, it remains to be seen if the five Justices who are prepared to constitutionally second-guess certain instances of harsh corporate punishment might also be willing to sometimes constitutionally second-guess certain instances of harsh individual punishment.

February 21, 2007 in Examples of "over-punishment" | Permalink | Comments (8) | TrackBack

Tuesday, February 20, 2007

SCOTUS continues to regulate corporate punishment

As detailed in this AP article and this early report from SCOTUSblog, the Supreme Court has ruled "that it is unconstitutional for a jury to award punitive damages out of a desire to punish a company for harming individuals other than those directly involved in the lawsuit in Philip Morris USA v. Williams Estate (05-1256)." 

I hope that the Court's continuing willingness to declare unconstitutional specific instances of excessive corporate punishment might, in some way, get extended to its review of cases involving excessive individual punishment.

February 20, 2007 in Examples of "over-punishment" | Permalink | Comments (2) | TrackBack

Ugly debate in Wilson case

Instead of dealing with the fact that Genarlow Wilson is serving a 10-year sentence for a crime that the Georgia law now classifies as a misdemeanor subject to only 12 months imprisonment, the Georgia legislature is caught up in ugly name calling about Wilson's case.  Here's are some of the details from this news article:

A war of words has erupted over the highly publicized case of a Douglas County teenager sentenced to 10 years in prison for having consensual sex with a minor. Georgia Senate President Pro Tempore Eric Johnson (R-Savannah) released a column Sunday about the case of Genarlow Wilson, the day after he figured prominently in a CNN piece about Wilson....

Johnson, in an interview Monday, said Wilson is "choosing martyrdom," rather than take a plea deal.  Johnson dismissed [Wilson lawyer] Bernstein's criticisms.  "She's hired a publicist, got a Web site and is raising money," Johnson said of Bernstein. "As long as she can use any — whether it's the bill, or whether it's a press conference or whether it's an op-ed — to generate publicity and go on national TV, she will.  She is trying this case in the media because she lost it in court."

February 20, 2007 in Examples of "over-punishment" | Permalink | Comments (3) | TrackBack

Saturday, February 17, 2007

CNN with additional coverage of Genarlow Wilson case

I am told by a knowledgeable source that CNN is back on the Genarlow Wilson case (background here and here).  I was pleased to see all the attention this remrkable case received last month (including from CNN), but it seemed criticisms had started to die down.  Here's hoping a new round of coverage will bring a new hope for justice for Wilson.

Some recent related posts:

February 17, 2007 in Examples of "over-punishment" | Permalink | Comments (0) | TrackBack

Tuesday, February 13, 2007

Still more buzzing about border agents sentence

As the buzzing continues about border agents case (background here and here), I am pleased to see a more refined focus on the exercise of prosecutorial discretion and the severity of the sentences received by Border Patrol Agents Jose Alonso Compean and Ignacio Ramos. 

As noted in this recent post, Senator Dianne Feinstein last week wrote various public letters (available here) in which she expressed her concern that "the sentences in this case are too extreme."  It is heartening to see Senator Feinstein asking AG Alberto Gonzales tough questions about the the exercise of prosecutorial discretion and the pursuit of enhanced sentences in this case.

Similarly, Debra Saunders now has this commentary in which she zeroes in on the sentencing unfairness that resulted from how prosecutorial discretion was exercised:

[U.S. Attorney Johnny] Sutton can point to inconsistencies in Ramos' and Compean's stories.  He is right to argue that law enforcement officials cannot be allowed to shoot at unarmed suspects or lie about what they do. 

For his part, Mr. Sutton offered both agents a plea bargain with a one-year sentence.  But at trial, the U.S. Probation Office [sic] sought 20-year sentences.  Prosecutors can argue that terms are stiff because of federal mandatory minimum sentences for crimes committed with guns, but it was Mr. Sutton's choice to throw the book at the agents -- charging them for assault with a dangerous weapon, obstructing justice, lying about the incident and willfully violating Aldrete-Davila's Fourth Amendment right to be free from illegal seizure -- as well attempted murder, for which they were acquitted.  That's a long sheet for acts begun in the heat of pursuit.

Some recent related posts:

February 13, 2007 in Examples of "over-punishment" | Permalink | Comments (5) | TrackBack

Thoughtful reflection on Skilling sentence

Thanks to Stuart Taylor's amazing commentary in The National Journal yesterday (discussed here), I discovered that Frank Bowman has this terrific piece in The American Lawyer providing reflections on the federal sentencing of Jeff Skilling and other white-collar offenders.  Frank's piece is entitled "Sacrificial Felon: Life sentences for marquee white-collar criminals don't make sense."  Here is one of many notable insights:

[T]he fate of [Skilling, Bernie Ebbers and John Rigas] leaves me certain of one fact:  The rules governing high-end federal white-collar sentences are now completely untethered from both criminal law theory and simple common sense.

February 13, 2007 in Examples of "over-punishment" | Permalink | Comments (0) | TrackBack

Monday, February 12, 2007

What are the odds of a cert grant in Berger?

Though my SCOTUS sentencing quota was hit by the cert grants in Claiborne and Rita, I am very pleased to see from SCOTUSblog here that the Berger case made on their "petitions to watch" for the Justices' Conference on Friday.  For a number of both simple and complicated reasons, I think the Berger case — in which a former Phoenix high school teacher claims that his 200-year prison sentence for possessing child pornography violated the Eighth Amendment (basics here, commentary here) — presents a terrific and perhaps rare opportunity for the Court (and its new Justices) to examine and refine its confusing non-capital Eighth Amendment jurisprudence.

Here is a line from the Reply Brief in Berger that nicely highlights one of many reasons why recent developments suggest the time might be ripe for SCOTUS to wade back into this part of the constitutional sentencing universe:

The Court's Eighth Amendment opinions have never expressly considered how the Amendment is to be applied when mandatory minimum sentences are required to be served consecutively, and lower court decisions are in substantial disarray.  Review at this time is especially appropriate in view of the sharply increasing use by Congress and the State legislatures of mandatory minimum sentences, coupled with consecutive sentence requirements.

Some related Berger posts:

February 12, 2007 in Examples of "over-punishment" | Permalink | Comments (0) | TrackBack

Irrational (but presumtively reasonable?) federal sentencing

Stuart Taylor Jr. has has this great commentary in The National Journal entitled "Irrational Sentencing, Top To Bottom."  Here are snippets:

The spectacle of former CEOs Bernard Ebbers and Jeffrey Skilling getting sent to prison for 25 and 24 years, respectively, reminded me a bit of Roman emperors throwing criminals to the lions and bears to gratify circus crowds.  Yes, Ebbers and Skilling are world-class crooks.  The first helped inflate WorldCom's profits by billions of dollars. The second presided over the multiple frauds that caused the collapse of Enron, the largest corporate bankruptcy in history.  They helped squander the nest eggs and kill the jobs of thousands of people.

But does this justify locking them up for longer than we do most murderers?  (The average federal sentence for murder is less than 19 years.)  Does it call for keeping Ebbers in prison until he is 87 and Skilling until he is 73?  Those were the no-parole penalties specified by the U.S. Sentencing Commission's guidelines, even if both men earn the maximum 15 percent reduction for good behavior.

To be sure, these are not the most egregious examples of the savage severity of our sentencing laws. Worse still are the long terms imposed on the scores of thousands of nonviolent, nondangerous drug offenders now rotting in state and federal prisons around the country.  But while we have become numb to the minimum drug sentences mandated by Congress since 1986 (which have driven up the sentencing commission's guidelines as well), Ebbers' and Skilling's near-life-terms are fresh reminders of how wantonly our sentencing laws trash the lives of nonviolent convicts at the top and the bottom of the income scale.

To his great credit, Taylor goes on in his commentary to highlight the parsimony provisions of the Sentencing Reform Act, a provision that federal circuit courts and the US Sentencing Commission make a habit of ignoring (see here and here). 

It is a sad and telling reality that a thoughtful observer like Taylor recognizes that the federal guidelines often produce "irrational" sentences for nonviolent convicts (like Mario Claiborne and Victor Rita), while the US Department of Justice, the US Sentencing Commission and most circuit court asser that the federal guidelines are "presumptively reasonable" in all such cases.

February 12, 2007 in Examples of "over-punishment" | Permalink | Comments (7) | TrackBack

Saturday, February 10, 2007

Senator Feinstein jumps into border agent case

The border agent case (background here and here) — which I am following because it highlights many of the problems inherent in mandatory minimum sentencing — continues to make headlines.  Today, San Francisco Chronicle reports here on the involvement of a notable Democrat:

Sen. Dianne Feinstein intervened Friday in the cases of two Border Patrol agents who are imprisoned for shooting an alleged Mexican drug smuggler and who have become a cause celebre for anti-illegal immigration GOP politicians, conservative media and activists.  The California Democrat, who is a member of the Senate Judiciary Committee, wrote letters to three top administration officials -- Attorney General Alberto Gonzales, Homeland Security chief Michael Chertoff and Federal Bureau of Prisons Director Harley Lappin -- asking for specific information about their agencies' involvement in the case.

Feinstein is the first prominent Democrat to become involved in the case of the border agents, and her office said she has secured the agreement of Senate Judiciary Committee Chairman Patrick Leahy to conduct a committee investigation. She said Leahy is open to a hearing on the matter....

Feinstein told Gonzales in her letter that she strongly believes the agents' sentences are too extreme, given that the victim resisted arrest and was smuggling large quantities of drugs. Further, she wrote, the agents had to her knowledge no prior convictions or aggravating circumstances to warrant such long terms.

The U.S. attorney who prosecuted the case, Johnny Sutton, has maintained that Congress determined the penalty, setting a mandatory minimum 10-year sentence for discharging a firearm during a crime of violence.

Feinstein said she found it even more disturbing that Ramos was beaten in prison. "It is not hard to predict that two federal agents would be targeted in a prison population and that special precautions should have been employed to ensure their safety," Feinstein wrote.

For reasons detailed in some of the posts below, I am very pleased an encouraged to see some Democratic senators showing interest in this cases as an example of over-punishment.

February 10, 2007 in Examples of "over-punishment" | Permalink | Comments (2) | TrackBack

Thursday, February 08, 2007

The latest on the border agents case

This AP story provides the latest developments in the border agent case (background here and here).  Here are excerpts:

A federal report released Wednesday on the shooting of a suspected drug smuggler by Border Patrol agents concurs with prosecutors that the men committed obstruction of justice by failing to report the shooting, destroying evidence and lying to investigators....  The U.S. Department of Homeland Security report on the investigation was drafted in 2006 after Ignacio Ramos and Jose Alonso Compean were convicted and each was sentenced to more than a decade in federal prison.  The 77-page report was made public Wednesday and offered few if any new details on the case....

A spokeswoman for U.S. Rep. Dana Rohrabacher, R-Calif., said the report only bolsters the congressman's support of the agents. "The OIG report has just emboldened our position because there is nothing in there that indicates these agents were not justified in shooting this individual," said Tara Setmayer. "This finally sheds some light on what these agents were thinking."...

"So far it looks to me like Agents Ramos and Compean may not have followed proper procedure following the shooting, which at most should have resulted in their suspension from the force, but not criminal procedure," Rep. John Culberson, D-Houston, said in a statement issued Wednesday afternoon.   Sen. Diane Feinstein, D-Calif., also asked Senate Judiciary Chairman Patrick Leahy, D-Vt., to pursue a Senate probe of the prosecution and sentencing.

I am pleased to see Senate Democrats taking interest in this case, which I consider to be an important example of the problems inherent in mandatory minimum sentencing.  As I have explained in prior posts (set out below), whether or not one believes the border agents should have been prosecuted, it is difficult to justify the extremely long sentences they received:

February 8, 2007 in Examples of "over-punishment" | Permalink | Comments (3) | TrackBack

Thursday, February 01, 2007

Harsh border agent sentences producing half-truths

The buzz over the border agent case (background here and here) continues to grow.  CNN has a new segment about the case, entitled Border outrage, in which there are accusations that federal prosecutor Johnny Sutton has not been fully truthful about granting immunity to the Mexican drug smuggler shot by the border agents.  The CNN piece also had various lawmakers suggesting that the government is covering up facts that might exonerate Agents Ignacio Ramos and Jose Alonso Compean.

Meanwhile, this news report from McClatchy Newspapers suggests President Bush in now misrepresenting his pardon power.  According to the news report, in "an interview on the Fox television network Wednesday, Bush again said he is bound by strict federal guidelines on pardons and cannot immediately grant a pardon to the two agents."  Though the Justice Department has its own internal pardon protocols, there are no legally binding restrictions on the President's pardon power and he can grant a pardon to any and all federal defendants at any time.

As I have said in post below, I think this case is fundamentally about the sad realities of mandatory minimums.  I think there can be a very reasonable debate over whether the agents committed criminal acts justifying some punishment.  Beyond debate, at least in my mind, is the notion that they deserve to be lcoked up for over a decade based on their behavior under these circumstances.  But, as often happens, a clear sentencing problem is lost in an over-heated debate of other issues.

Related posts on border case injustices:

February 1, 2007 in Examples of "over-punishment" | Permalink | Comments (2) | TrackBack

Monday, January 29, 2007

Another extreme mandatory sentence ... Update: is Wolf Blitzer next?

I am still trying to make sense of the extreme mandatory minimum punishments and prosecutorial choices in the Genarlow Wilson (background here and here) and border agent cases (background here and here).  But now, thanks to this post at How Appealing, I now see another example of an extreme mandatory minimum punishment.

In this case, as detailed by Judge Richard Clifton in this concurring opinion, at issue are "mandatory sentences of life imprisonment [for] young people, aged 25 and 21 at the time of conviction" as a consequence of a "terrible death of the victim here was an unintended consequence of the defendants' act of burning down a house they viewed as theirs, in order to end a long-running family disagreement."  Notably, Judge Clifton (an appointee of President George W. Bush), calls for the exercise of executive clemency at the end of his concurrence:

The President has the power to temper justice with mercy. I hope that the Executive Branch revisits this case and, if the facts truly are as they have been made to appear to us, will consider letting the defendants go after a more appropriate term of incarceration.

UPDATE:  Turning back to the Wilson case, a commentor wonder if CNN, which apparently has a copy of the videotape showing minors engaging in a sex act, might be guilty of posessing child pornography.

January 29, 2007 in Examples of "over-punishment" | Permalink | Comments (2) | TrackBack

A valuable (but disconcerting) perspective on the border case

Andrew C. McCarthy has this must-read article in today's National Review Online about the border patrol agent case (background here and here).  The article includes lots of great insights, but also some troublesome rhetoric.  Here's a taste:

Myopic border-enforcement activists seem unconcerned about any of these facts [which shows the border agents' misdeeds] — for them, much like anti-death penalty obsessives, the cause is a higher calling.this case rankles ordinary Americans, too.  That's understandable given the severity, the equities, and the potential ramifications of the punishment.

There is broad recognition that bad agents should be weeded out of any police force. Compean and Ramos, however, have not just been terminated; they were socked with sentences of twelve and eleven years, respectively.  This, in connection with an incident that arose out of a job which — their appalling conduct aside — is undeniably dangerous; an incident instigated by a drug dealer who was not prosecuted for crimes worth at least as much jail time as the agents received — an illegal alien felon who may end up with a big cash windfall premised on the absurdity that his purported American "civil rights" were violated....

[D]id the indictment really have to be this severe?  After all, the sentences are extremely harsh.  Here, the agents have mainly themselves to blame. The government offered them very generous plea deals.  Compean and Ramos spurned them. If defendants decline to plead guilty and insist on proceeding to trial, it is standard operating procedure for the Justice Department to bring its best case — which includes charging the offense that carries the highest penalty among all readily provable crimes. Indeed, it is common for the government to insist on the most severe, readily-provable offense even at the plea-negotiation stage — something Sutton's office did not do.

Talk about an interesting example of blaming the victims (of overly harsh sentencing practices).  The two border agents opted to exercise their constitutional rights to force the government to prove its case to a jury, and now the National Review's columnist says they have "mainly themselves to blame" for their harsh sentences. I wonder if anyone at the National Review is actively urging Lewis Libby to cop a plea, since he will have only himself to blame if he ultimately gets convicted and receives a tough sentence.

January 29, 2007 in Examples of "over-punishment" | Permalink | Comments (6) | TrackBack

Using the border agent case as a catalyst for federal sentencing reform

This year would seem to present a new opportunity for needed bipartisan federal sentencing reform.  Democrats have slim majorities in both houses of Congress, Booker declared aspects of the old rules unconstitutional, and most everyone agrees that mandatory minimum and crack sentencing rules are unfair.  The only snag would seem to be traditional "tough-on-crime" Republican opposition to moderating any federal sentencing rules.

But a new hot-button case — involving extreme sentences for two border agents due to the application of federal mandatory minimums — has lots of Republicans recognizing how federal sentencing can spin out of control.  Indeed, as this article details, Republican members of Congress are busy proposing all sort of kooky bills to try to remedy this case of sentencing injustice:

Several members of the House are drafting legislation to cut off funding specifically for the incarceration of border agents Ignacio Ramos and Jose Alonso Compean, sentenced to 11 and 12 years respectively.

The case unleashed a storm of criticism.  Lawmakers first called for hearings into why the Justice Department granted immunity to a suspected drug smuggler so he would testify against two agents who shot him.  Two bills were later introduced in the House — one calling on President Bush to pardon to the two agents and the other to vacate the federal court's conviction.

Rep. Ted Poe (R-Texas) has signed on to both proposals but knows the power of Congress is limited in vacating a court ruling, given the constitutional separation of powers. "There are constitutional issues with that," Poe told Cybercast News Service Friday.  "We do have the power of the purse. We can prohibit funds for the incarceration of the two border agents. That legislation was talked about last week. In the next week, it should be introduced."  Poe said while it was not his idea, he would sign on to the bill and expects many other members to do so as well, considering 50 members urged the president to pardon the agents and 70 signed on to a bill to vacate the court ruling.

It is a sad and telling commentary that the Republican reaction to these unfair sentences is to propose novel — and probably unconstitutional — new laws rather than to try to fix the old laws that has produced the injustice.  Though many may think the very prosecution of the border agents was unjust, the case is so troubling because of the sentences required by federal mandatory minimum sentencing law.  Had the agents received only, say, 11 and 12 months (rather than 11 and 12 years), this case would likely look a lot different.

Rather than bemoan reactions to the border agent cases, I want to issue a challenge to leaders in Congress: Will anyone in the House or Senate have the courage to use the border agent case as an opportunity to discuss and move forward with needed federal sentencing reforms?  I especially hope that Senators Edward Kennedy, Orrin Hatch, and Dianne Feinstein, who filed such a disappointing brief in Claiborne (details here and here), understand that the border agent case presents a unique and rare opportunity to start addressing the potential injustices of crude sentencing rules.

Some recent related posts:

January 29, 2007 in Examples of "over-punishment" | Permalink | Comments (0) | TrackBack

Saturday, January 27, 2007

Two (feminist?) perspectives on the Wilson case

I am pleased the Genarlow Wilson case (background here and here) continues to generate buzz.  Some buzz appears in my e-mail in-box, where I received this note from a thoughtful female reader:

I want to address your wondering why more people of influence are not rushing to get Genarlow Wilson out of jail, since his sentence is so long that he is the victim of a clear and disturbing injustice.

I think that it is possible that the behavior of Genarlow and his friends on the night they got in trouble is deeply offensive to many who hear about it, and people simply do not like Genarlow well enough to fight for him.  It is very troubling to know that high school football heroes invited hero-worshipping fifteen-year-olds to a party and got them drunk in order to have practically guaranteed sexual service. What a cowardly act!

Beyond ethical considerations, I'll bet that many women hearing about this, knowing what hero worshippers they were at fifteen, shudder at the thought that a lot of us could have been those vulnerable little girls at the party, taken advantage of in the most cynical way, and think that, while ten years is excessive, the guy basically got what he deserved.  I can't say what men think along those lines, but they, too, are keeping their distance from Genarlow.

Providing a notably different female perspective is Becky C. at her blog, which purports to provide "observations and commentary by a post-modern neo-feminist libertarian cyberpunk on society, culture, politics and whatever."  Here is a snippet from this long post entitled "A Blowjob in Georgia":

At lot of people are saying this law was a result of a hick Georgia legislature.  That is not really fair.... The Georgia legislature did not sit down one day and decide that kids doing bjs was much more serious than doing the full deal.  Laws are passed piece meal.  Amendments are almost always not read by the lawmaker. And they never have a full understanding of the effect of the legislation....

But there is someone in the system that is suppose to prevent these problems, not exploit them. That is the prosecutor.  I became a prosecutor, for a few years, because I wished to crush the balls of sexual perverts and woman beaters.  While I like to think my motives were noble, many lawyers find this kind of power intoxicating.  Prosecutor offices are mostly staffed with young lawyers directly out of law school. The pay is not good, but the experience is unparalleled....

But most people do not do this type of work for long.  Some, like me, just get sick of the whole thing. Most, after a few years, can make tons more money by moving to the private side. However, there are some who pretty much make a career out of it. Now some of these have the best of intentions. But all too many stay because, even though the dough is a lot better in a private firm, you do not have the opportunity to lop off heads on a regular basis. And that is what this is all about. In legal parlance it is called "prosecutorial discretion."

January 27, 2007 in Examples of "over-punishment" | Permalink | Comments (8) | TrackBack

CNN covers Genarlow Wilson case, who's next?

CNN now has this lengthy video providing lots of background on the Genarlow Wilson case, which includes interviews with Wilson and prosecutor Eddie Barker.  It also details the start of legislative efforts to do justice.

Though the CNN piece effectively covers the basics of the case, it continues the failure of the media or anyone else to pressure the prosecutor to seek true justice.  The CNN reporter indicates that the prosecutor is willing to cut Wilson's sentence down to five years, but then never follows up to ask why the prosecutor believes that a five-year sentence is appropriate for Wilson having consensual oral sex with a fellow teenage.  Grrr!

Now that Wilson's plight is getting more coverage with ESPN and now CNN doing stories, I am wondering when powerful celebrities might use their clout to help achieve justice for Wilson.  As I recall, some celebrities spoke out for the murderer Tookie Williams.  Where are they now when a young kid who never hurt anyone needs help? 

Though perhaps I put too much faith in the power of celebrities, a little attention from the likes of Angelina Jolie or Bono or Donald Trump (all of whom, I suspect, are supporters of consensual sex) might really make a difference.  Where is Oprah when we really need her?

Some recent related posts:

January 27, 2007 in Examples of "over-punishment" | Permalink | Comments (4) | TrackBack

Friday, January 26, 2007

Will the Georgia legislature help Genarlow Wilson get justice?

According to this new article, there is some possible legislative action afoot in Genarlow Wilson case from Georgia (sad details here).  Here are the highlights:

State Sen. Emanuel Jones, D-Decatur, [has] introduced legislation that he said he hopes would allow a judge to re-sentence Wilson under the more lenient sentencing provision.

Since the state Supreme Court issued its Dec. 15 ruling, the case has become a bit of a cause célèbre, with The New York Times publishing an editorial calling for Wilson's release and the The Atlanta Journal-Constitution saying Wilson deserves "justice," not "condolences."  Thursday morning,'s top story was an in-depth report on the legal case of the former high school football player, headlined "Outrageous Injustice."

"I read the editorials, I again went back and reviewed the comments from Justice Hunstein, and I said I would make it my … work this session to get him out of prison," said Jones. He added that he has bipartisan support, and one of his co-sponsors is Sen. Dan Weber, R-Dunwoody.... Senate Judiciary Committee Vice Chairman Seth Harp, R-Midland, said Thursday that he wanted to study the bill and its ramifications before determining his position on it.

Though I am encouraged some Georgia legislators are looking for solutions, I continue to be deeply troubled and mystified that there isn't more pressure being placed on executive branch officials to do justice for Genarlow Wilson.  Recall this passage from the ESPN article:

"We can set aside his sentence," [prosecutor Eddie] Barker says. "Legally, it's still possible for us to set aside his sentence and give him a new sentence to a lesser charge.  But it's up to us. He has no control over it." The position of Barker and the district attorney, McDade, who refused to comment, is that Wilson is guilty under the law and there is no room for mercy, though the facts seem to say they simply chose not to give it to Wilson.

What I find depressing (and what confirms the impact of race and class) is the contrast we see in reaction to this case and the Duke lacrosse case.  In the Duke case, as detailed here, prosecutor Michael Nifong may be disbarred for purported "systematic abuse of prosecutorial discretion" simply because of the way he filed charges.  In the Wilson case, in sad contrast, no one is even seriously questioning the prosecutors about their refusal to exercise their discretion to achieve justice.

UPDATE:  A few commentors have already reacted strongly to my suggestion that distinct reactions to prosecutorial behavior shows the impact of race and class. 

Please understand that I am not arguing that that the actions of Nifong and Barker/McDade are legally, morally or ethically parallel in any way.  Rather, I am simply trying to note that when a NC prosecutor over-zealously prosecutes rich white kids, his decisions are question by the whole world; but when GA prosecutors continue to over-zealously prosecute a less-affluent black kid, far fewer questions are asked.  My chief point is that, as Mike Connelly explains here, we ought to be much more willing to question the exercise of prosecutorial discretion in all cases (like Republican legislators are now doing in the border shooting case.)

January 26, 2007 in Examples of "over-punishment" | Permalink | Comments (21) | TrackBack