Friday, June 14, 2013

Lots of reasonable debate over the guidelines and reasonable review from Second Circuit judges

With thanks to the readers who alerted me, I wanted to alert everyone else to todays Second Circuit opinion in US v. Ingram, No. 12-1058 (2d Cir. June 14, 2013) (available here).  The per curiam opinion, which affirms a below guideline drug sentence, is not at all notable (and runs only 3 pages). 

But the concurring opinions are both must reads: the first is by Judge Calabresi and runs 14 pages, the second is by Judge Raggi and runs 17 pages to explain why she thinks the prior 14 pages are all washed up.   As a reader put it, the two Second Circuit jurists here "have at it on various psychological, philosophical, and practical matters concerning sentencing under the Guidelines."

June 14, 2013 in Booker in the Circuits, Federal Sentencing Guidelines, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Thursday, June 13, 2013

"The Non-Redelegation Doctrine" with post-Booker sentencing in mind

Now available via SSRN is this intriguing new article from F. Andrew Hessick III and Carissa Byrne Hessick, which is titled simply "The Non-Redelegation Doctrine." Here is the abstract, which highlights why this article should be of special interest to sentencing fans:

In United States v. Booker, the Court remedied a constitutional defect in the federal sentencing scheme by rendering advisory the then-binding sentencing guidelines promulgated by the U.S. Sentencing Commission.  One important but overlooked consequence of this decision is that it redelegated the power to set sentencing policy from the Sentencing Commission to federal judges.  District courts now may sentence based on their own policy views instead of being bound by the policy determinations rendered by the Commission.

This Essay argues that, when faced with a decision that implicates a delegation, the courts should not redelegate unless authorized by Congress to do so.  The proposed non-redelegation doctrine rests on both constitutional and practical grounds. Constitutionally, because delegation defines how Congress chooses to perform its core function of setting policy, judicial redelegation raises substantial separation of powers concerns.  Practically, judicial redelegation is bound to affect the substantive policies that are adopted because the policies that the agent adopts depend on the agent’s unique characteristics and preferences.  Although this Essay uses Booker to illustrate the need for the presumption, the presumption would apply equally to the myriad contexts in which Congress delegates its power to make policy and courts have the opportunity to alter that delegation.

June 13, 2013 in Booker and Fanfan Commentary, Booker in district courts, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

SCOTUS holds in Davila judicial involvement in pleas subject to harmless error analysis

Via the fine folks at SCOTUSblog, here are the quick highlights from the one sentencing-related opinion handed down by the US Supreme Court this morning:

US v. Davila. Opinion by Ginsburg for the Court. The decision of the Eleventh Circuit is vacated and remanded. There is a concurrence by Justice Scalia that joins part of the opinion and in the judgment; Justice Thomas joins that opinion.

Under the Federal Rules, vacatur of the plea is not in order if the record shows no prejudice to Davila's decision to plead guilty.  This was a case in which the issue was whether there must be an automatic reversal if the judge played any role in the plea bargaining....

Here is the opinion in Davila.

In Davila, the Eleventh Circuit had ruled that automatic reversal was required, which conflicted with essentially everyone else's ruling.  Federal Rule of Criminal Procedure 11 prohibits judges from participating in plea agreements, but another subsection of the rule also provides that a “variance from the requirements” of Rule 11 is “harmless if it does not affect substantial rights,” so this one did not come as a huge surprise.

June 13, 2013 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Arizona prosecutors say they are still planning to try again to get Jodi Arias sentenced to death

As reported in this Reuters article, a "top Arizona prosecutor said on Wednesday that the state still plans to seek the death penalty for convicted murderer Jodi Arias for killing her ex-boyfriend, after a jury deadlocked last month on whether she should be executed." Here is more:
[T]he same eight-man, four-woman jury that convicted Arias of murder and quickly ruled her eligible for the death penalty subsequently failed to reach a consensus as to whether Arias should be executed, prompting a penalty phase mistrial.

The state of Arizona now has the option of retrying the sentencing phase of the trial, which would require a new jury be empanelled. If there is another deadlock, a judge would sentence Arias to natural life in prison, or life with the possibility of parole after 25 years.

Maricopa County Attorney Bill Montgomery told reporters prosecutors would ask a new sentencing jury to do what the previous one could not - put Arias to death. "At this point, we are still preparing to move forward to retry the penalty phase," Montgomery told a news conference.

After the jury failed to reach a unanimous verdict on May 23, Montgomery said that his office would assess its next steps, but was proceeding "with the intent to retry the penalty phase." A status hearing has been scheduled for June 20. A July 18 court date was set to select a new jury in the case.

Recent related posts:

June 13, 2013 in Celebrity sentencings, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Wednesday, June 12, 2013

Bipartisan House Overcriminalization Task Force schedules first hearing for June 14

I learned via this NACDL press release that Representative Jim Sensenbrenner Chairman Sensenbrenner has scheduled the first hearing of the Overcriminalization Task Force for this Friday, June 14, 2013, at 9:00 a.m. at 2237 Rayburn House Office Building." Here is more background and details via the release:

On May 7, 2013, The House Committee on the Judiciary voted unanimously to create the “Overcriminalization Task Force of 2013.”  At a press briefing that day, Judiciary Committee and Overcriminalization Task Force leaders expressed agreement on the need to address several important issues, including the erosion of the mens rea (or criminal intent) requirement in federal criminal law, the often unnecessary duplication of state law in the federal code, overincarceration, and the explosion of regulatory offenses that some estimate may now number as high as 300,000, among other issues.  Members also expressed the need to address mandatory minimum sentences.

According to Judiciary Committee Chairman Bob Goodlatte (R-VA), “The task force will be authorized for six months and will be led by Crime, Terrorism, Homeland Security, and Investigations Subcommittee Chairman Jim Sensenbrenner and Ranking Member Bobby Scott.” It will “conduct hearings and investigations and issue a report on overcriminalization in the federal code, as well as possible solutions.”  The task force is made up of five Democrats and five Republicans, and will include Judiciary Committee Ranking Member John Conyers (D-MI) and Chairman Goodlatte as ex-officio members....

The topic of this first hearing is “Defining the Problem and Scope of Overcriminalization and Overfederalization.” [And here are the scheduled witnesses:]

Mr. Steven D. Benjamin, President, National Association of Criminal Defense Lawyers

Mr. John Malcolm, Rule of Law Programs Policy Director, The Heritage Foundation

Mr. William N. Shepherd, Chair, Criminal Justice Section, American Bar Association

The Honorable George Terwilliger, III, Partner, Morgan, Lewis & Bockius LLP

A webcast of the hearing as well as the written testimony of the witnesses will be made available [at this link].

June 12, 2013 in Federal Sentencing Guidelines, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

Not surprisingly, early buzz about a possible plea for Cleveland kidnapper Ariel Castro

As reported in this USA Today article, headlined "Lawyer for Cleveland kidnap suspect hopes to avoid trial," an initial court appearance for Ariel Castro is already leading to talk of a possible plea in this high-profile case. Here are the basics:

The man accused of kidnapping and holding three women for a decade pleaded not guilty Wednesday in Cleveland to hundreds of criminal counts, but his lawyer said after the hearing that some of the charges "cannot be disputed" and that he hoped to avoid a trial.

Charges against Ariel Castro, 52, include murder, rape, kidnapping and torture -- and he could face the death penalty. Defense lawyer Craig Weintraub entered the plea in an arraignment that took about one minute. A pretrial hearing was set for June 19....

"We are very sensitive to the emotional strain and impact that a trial would have on the women, their families and this community," Weintraub said after the hearing. "Mr. Castro currently faces hundreds of years in prison with the current charges and it is our hope that we can continue to work towards a resolution to avoid having an unnecessary trial about aggravated murder and the death penalty."

A Cuyahoga County grand jury's 329-count indictment charges Castro, a musician and former school bus driver, with one count of aggravated murder for allegedly terminating one of his captives' pregnancies, 139 counts of rape and 177 charges of kidnapping, seven counts of gross sexual imposition, three counts of felony assault and one count of possession of criminal tools dating from the time of the first woman's disappearance until February 2007.

County Prosecutor Timothy McGinty has said the investigation is still underway. Additional charges could follow in a superseding indictment. The indictment charges Castro as a "sexually violent predator" who committed the murder and rapes in the course of a kidnapping. Those charges are considered aggravating factors that call for stiffer penalties. The murder charge is tied to one victim's fourth pregnancy, the indictment said.

"A not guilty plea at this stage requires the prosecutor to continue to evaluate their case to determine whether medical and forensic evidence can actually support an aggravated murder conviction, for the death of a fetus, and whether the death penalty is warranted," Weintraub said after the hearing.

The County Prosecutor's Capital Review Committee will consider whether prosecutors should seek the death penalty if Castro is convicted. Castro, who was fired last year from his bus driver job, is being held in the Cuyahoga County jail on $8 million bail....

Police allege in the indictment that Castro chained Knight to a pole in the basement and raped her the day after he took her captive. He allegedly taped Berry's legs and mouth, sexually assaulted her after she tried to escape, chained her to a pole in the basement with a motorcycle helmet on her head, chained her to a radiator in the bedroom, and attempted to strangle her with a vacuum cleaner cord, the indictment says. He also allegedly chained and assaulted DeJesus.

Recent related posts:

June 12, 2013 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (12) | TrackBack

"What the Sentencing Commission Ought to Be Doing: Reducing Mass Incarceration"

The title of this post is the title of this notable new article by Judge Lynn Adelman available via SSRN.  With three new members of the US Sentencing Commission, the piece is especially timely, and here is the abstract:

The United States presently incarcerates about 2.3 million people.  We imprison people at a higher rate than any other country and now house more than a quarter of the world’s prisoners.  Incarcerating so many people raises important moral issues because the burden of incarceration is borne largely by minorities from impoverished inner city communities. Further, those incarcerated suffer detriments that go far beyond the legislated criminal penalty and doom many offenders to a continuing cycle of re-incarceration. Over-incarceration is also very costly.

The federal government contributes significantly to this problem.  Every week it locks up a record number of people, presently about 216,000.  While some states have recently reduced their prison populations, the federal prison population continues to increase.  The principal reason for this is federal sentencing law. Since Congress enacted the Sentencing Reform Act (“SRA”) creating the Sentencing Commission and directing it to establish sentencing guidelines, the average federal sentence has more than doubled.  Federal prisons are now at 138% of capacity and consume an ever-increasing share of the federal criminal justice budget.

There are only two ways that we can reduce the prison population: by sending fewer people to prison and imprisoning people for shorter lengths of time.  Many observers believe that the sentences called for by the federal sentencing guidelines, which were mandatory until 2005 when the Supreme Court decided United States v. Booker and made them advisory, are too severe and could be significantly reduced without endangering public safety.  The Commission, however, has shown no interest in making guideline sentences less harsh. Rather, its principal concern is that since Booker judges are imposing too many below guideline sentences and thereby creating disparity.  Thus, it recently asked Congress to require sentencing judges to give additional weight to the guidelines and provide additional justification for sentences varying substantially from the guidelines, and to require appellate courts to presume the reasonableness of guideline sentences and to strictly scrutinize sentences based on policy disagreements with the guidelines.  These restrictions would, of course, increase the federal prison population.

My essay argues that it serves no useful purpose for the Commission to continue to make its top priority curtailing judicial discretion in the name of reducing disparity.  I contend not only that the system created by the SRA and the guidelines failed but that any system principally designed to reduce disparity will fail.  I argue that, instead of attempting to curtail judicial discretion, the Commission should focus on the problem of over-incarceration.  The Commission is statutorily authorized and institutionally well-positioned to address this problem and, by doing so, it could have a positive impact on the entire American criminal justice system.  I propose that the Commission take such actions as modifying the guidelines to expand the use of probation, reducing the severity of numerous guidelines, developing a release program for elderly prisoners, lobbying Congress regarding mandatory minimum sentences, calling public attention to over-incarceration and others.  I also contend that if the Commission is intent upon reducing disparity, the best way to do so is by making the guidelines less severe and thus making it more likely that judges will follow them.

Some recent related posts:

June 12, 2013 in Federal Sentencing Guidelines, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (20) | TrackBack

Tuesday, June 11, 2013

Notable capital habeas echo from Firth Circuit after complaint about Judge Jones

As reported in this local piece, headlined "Chief Judge: New Panel Will Be Assigned to Consider Death Row Appeal; Execution still slated for tomorrow," there has now been at least one procedural consequence of the resent complaint filed against Fifth Circuit Judge Edith Jones concerning her comments at a law school about the operation of the death penalty.  Here are the basics:

The chief judge of the 5th U.S. Circuit Court of Appeals this afternoon ordered [via this panel ruling] a new three-judge panel of the court to be assigned to review the case of Texas death row inmate Elroy Chester who argues that comments made by Judge Edith Jones, detailed in a complaint filed last week with the court, indicate she cannot fairly rule in his case.

Whether Chester will be executed as planned, tomorrow night, June 12, is now in limbo. Chester was sentenced to die for the 1998 death of a well-liked Port Arthur fireman who he killed as part of a months-long crime wave. There is no doubt Chester is guilty of the crime, but there remains doubt about whether he is mentally retarded. If so he would be barred from execution under a 2002 U.S. Supreme Court ruling that the practice violates the constitutional ban on cruel and unusual punishment.

To date, Chester's appeals on this point have been denied. Although experts, and even the Texas Court of Criminal Appeals, have agreed that Chester has a low IQ and some deficits in adaptive functioning – two points that clinicians use to determine intellectual disability – the courts (including the CCA) have nonetheless determined that he is not too disabled to be executed. The nature of his crimes and other non-scientific factors upon which the Texas courts have relied to make such determinations are not unreasonable, the Fifth Circuit ruled in 2012.

That ruling was penned by the court's then-Chief Judge Edith Jones about whom a serious complaint of misconduct was filed by a handful of civil rights groups, with the Fifth Circuit's current Chief Judge Carl Stewart. The complaint alleges that Jones made a number of racist and biased comments during a lecture on the death penalty she gave at the University of Pennsylvania School of Law in February....

In response to the complaint, filed June 4, Chester's attorney, Alaska-based Susan Orlansky filed a motion with the Fifth Circuit to stay Chester's execution and to have a new three-judge panel review his previous appeal to the court – or, in the alternative, to have his execution stayed until the investigation into the complaint about Jones' behavior could be resolved. "The Court should not permit Mr. Chester to be executed amid troubling questions about the actual or apparent partiality of the judge who cast the deciding vote [denying his appeal] and [who] authored the opinion in his case."

Tuesday afternoon, Chief Judge Stewart agreed that a new panel should be constituted, but declined to stay tomorrow's execution – leaving three newly-assigned judges a little more than 24 hours to decide whether Chester's previous appeal should be revisited.

In determining that a new panel should be appointed, Stewart noted not only that Jones was subject to a misconduct complaint that raises "questions about the impartiality of the judge as respects petitioners like [Chester] and his underlying claims," Stewart wrote also that his duty to review that complaint gives him a "substantial role" in considering whether it should go forward. The third member of the panel, Judge James Dennis, is also placed an an odd conflicting position because the complaint against Jones also raises an issue about her as it pertains to an ugly episode during a 2011 oral argument during which she slams her hand on a desk and tells Dennis to "shut up" as he is questioning a lawyer about the case at bar.... "Given these extraordinary circumstances, the panel has concluded that another panel must be assigned to consider the pending motions," Stewart wrote today, though he declined to issue a stay of tomorrow night's slated execution, which would make Chester the 499th inmate put to death in Texas since reinstatement of the death penalty.

In a separate opinion, Dennis concurred with Stewart's decision to move the case to three different judges, but opined that the court should also stay the execution "in order to give the new panel adequate time to consider whether to recall the mandate and take further action in this case," he wrote. "If this court ultimately concludes that Chester's motion to recall the mandate is without merit, no irreparable harm will have been done to the state and the execution can be rescheduled," he continued. "Unless a temporary stay of the execution is granted, however, the court may be unable to give the issues presented the deliberate and judicious attention they deserve before the execution takes place. Chester's execution, of course, will moot those issues and any constitutional injury to his rights will be irreparable."

Recent related posts:

UPDATE:  As reported in this local piece, Elroy Chester was executed by the state of Texas on Wednesday June 12.

June 11, 2013 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (23) | TrackBack

Celebrity injustice?: NFL player Chad Johnson gets 30-days in county jail for lawyer butt pat

0610-chad-johnson-video-launch-1As reported in this CNN piece, "Butt pat lands former NFL star Chad Johnson in jail," a low-level sentencing proceeding involving a high-profile defendant in Florida state court has become interesting fodder for debating courtroom decorum and celebrity justice. Here are the intriguing details:

As an NFL player, Chad Johnson patted a lot of men on the butt when he liked their work, but on Monday, defendant Chad Johnson found out that one Florida courtroom was not the place to play that game.

After Johnson patted his lawyer on the rear, Judge Kathleen McHugh rejected Johnson's plea to a probation violation in the domestic violence case involving Johnson and his then-wife, Evelyn Lozada. Johnson was arrested in May for not meeting with his probation officer and was in court Monday to enter a plea.

After he was asked if he was pleased with his attorney, the former wide receiver once known as "Chad Ochocinco" gave his lawyer, Adam Swickle, a gentle pat on the rear.

McHugh was furious when people in the audience laughed. "There's nothing funny about what's going on here today," she told Johnson.

Johnson, 35, replied that he wasn't laughing. Then McHugh said, "I don't think anything's funny about it, Mr. Johnson. This isn't a joke."

Johnson said he didn't do it as a joke. Swickle agreed, saying: "I don't think it was done as any disrespect to the court. I don't think he meant to get a reaction from the court room, judge."

The judge told Johnson she wouldn't accept a plea deal that involved only community service and more anger management counseling. Instead, she sentenced him to 30 days in jail and tacked three months onto his one-year probation, which would have ended in September.

Johnson seemed resigned to his fate. "Love me through the good and the bad because I'm gone love you regardless... See you in 30... " he tweeted later.

As I write this post, I am hearing Skip Bayless and Stephen A. Smith on First Take yelling at each other about sentencing practices, race, gender, incarceration and courtroom activities.  Given that there is this video of what went down (with the key event just before the one-minute mark, and the judge's (over?)reaction just before the two-minute mark), I hope readers will provide their own takes on this notable example of celebrity sentencing.  

June 11, 2013 in Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (29) | TrackBack

Documenting problems with using electonic tracking for crime control in Colorado

The Denver Post recently published this lengthy article headlined "Electronic monitoring of Colorado parolees has pitfalls," which documents that the benefit GPS tracking may depend on who monitors the monitoring.  Here are exceprts:

One sex-offender parolee hooked his GPS tracking device to his dog's collar so he could consort with underage girls and collect firearms, drugs and ammunition, police say.

Another parolee disappeared from his motel the day he was tethered to an electronic monitor.  He now is charged with raping two women and attempting to rape another.  A third kept unplugging his monitoring device and ignored warnings that he stop moving without approval. Authorities now believe he killed a 59-year-old man at a motel.

Well before parolee Evan Ebel tore off his ankle bracelet in March and allegedly killed two people, including Colorado corrections chief Tom Clements, the state's electronic-monitoring system showed signs of trouble.  A Denver Post review of parolee cases and monitoring data from October to April found that serious alerts sometimes went unheeded until it was too late, even as the system generated thousands of false and minor notifications.

Colorado's most dangerous parolees are outfitted with high-tech equipment that is supposed to keep a close watch on their whereabouts.  Monitors are strapped to their ankles and receivers installed in their residences.  In the most serious sex-offender cases, parolee movements are tracked by a GPS system.

But problems arise.  Batteries run down.  Plugs get ripped from wall sockets.  The systems go dark.  The Post found several cases in which parole officers responded slowly as parolees went off the grid and allegedly committed new violent crimes....

Tim Hand, the state's director of parole, requested an audit by the National Institute of Corrections, a U.S. Department of Justice agency, following the Ebel case.  Hand has not talked publicly since being placed on administrative leave last month, but in an interview in April, he said electronic monitoring is a challenge.

"The public thinks we put an ankle bracelet on and everything is fine, but the electronic monitoring is just a tool," Hand said. "It's better, in my view, than not having that tool, but it doesn't mean that offender can't cut it off and run away. It doesn't mean we're going to be able to control that offender's every move."...

Under the state's new rules, when a tamper alert occurs, parolees will be required to stay at their residences until parole officials can visit with them.  Parole officers, who previously had the discretion to respond on their own time frame, will be required to visit a parolee's home within 24 hours after a tamper alert to decide whether an arrest warrant is needed.

Officials also plan later this month to submit a $600,000-a-year plan to legislative leaders for a new parole unit to track down absconders.  In the past, those roundups occurred on an ad-hoc basis using overtime payments to parole officers, with the assistance of local law enforcement.  There are currently more than 800 Colorado parole absconders....

The data showed that a team of 212 parole officers had to respond to nearly 90,000 alerts and notifications generated by the electronic monitoring devices in the six months reviewed.

Carl Sagara, a past deputy director of parole and community corrections in Colorado, said he suspects that such high volume quickly can become overwhelming to parole officers. "These guys come into the office in the morning, and they have got 30 guys on electronic monitors, and the computer has so much information on all these guys, and the parole officers just go, 'Holy smokes,' " Sagara said.

In addition, many electronic-monitoring programs throughout the nation aren't staffed appropriately, said George Drake, a consultant who has worked on improving the systems. "Many times when an agency is budgeted for electronic-monitoring equipment, it is only budgeted for the devices themselves," Drake said. "That is like buying a hammer and expecting a house to be built. It's simply a tool, and it requires a professional to use that tool and run the program."

He added that programs also can get out of control if officials don't develop stringent protocols for how to respond to alerts and don't manage how alerts are generated. "I see agencies with so many alerts that they can't deal with them," Drake said. "They end up just throwing their hands up and saying they can't keep up with them."

June 11, 2013 in Criminal Sentences Alternatives, Reentry and community supervision, Technocorrections, Who Sentences? | Permalink | Comments (7) | TrackBack

Monday, June 10, 2013

"A Conservative Case for Prison Reform"

The title of this post is the title of this op-ed appearing in today's New York Times and authored by Richard Viguerie, the chairman of ConservativeHQ.com. Here are excerpts:

Conservatives should recognize that the entire criminal justice system is another government spending program fraught with the issues that plague all government programs.  Criminal justice should be subject to the same level of skepticism and scrutiny that we apply to any other government program.

But it’s not just the excessive and unwise spending that offends conservative values. Prisons, for example, are harmful to prisoners and their families. Reform is therefore also an issue of compassion. The current system often turns out prisoners who are more harmful to society than when they went in, so prison and re-entry reform are issues of public safety as well.

These three principles — public safety, compassion and controlled government spending — lie at the core of conservative philosophy.  Politically speaking, conservatives will have more credibility than liberals in addressing prison reform.

The United States now has 5 percent of the world’s population, yet 25 percent of its prisoners.  Nearly one in every 33 American adults is in some form of correctional control. When Ronald Reagan was president, the total correctional control rate — everyone in prison or jail or on probation or parole — was less than half that: 1 in every 77 adults.

The prison system now costs states more than $50 billion a year, up from about $9 billion in 1985.  It’s the second-fastest growing area of state budgets, trailing only Medicaid. Conservatives should be leading the way by asking tough questions about the expansion in prison spending over the past three decades....

Too many offenders leave prisons unprepared to re-enter society. They don’t get and keep jobs. The solution lies not only inside prisons but also with more effective community supervision systems using new technologies, drug tests and counseling programs.  We should also require ex-convicts to either hold a job or perform community service.  This approach works to turn offenders from tax burdens into taxpayers who can pay restitution to their victims and are capable of contributing child support....

Right on Crime exemplifies the big-picture conservative approach to this issue.  It focuses on community-based programs rather than excessive mandatory minimum sentencing policies and prison expansion.  Using free-market and Christian principles, conservatives have an opportunity to put their beliefs into practice as an alternative to government-knows-best programs that are failing prisoners and the society into which they are released....

By confronting this issue head on, conservatives are showing that our principles lead to practical solutions that make government less costly and more effective. We need to do more of that.  Conservatives can show the way by impressing on more of our allies and political leaders that criminal justice reform is part of a conservative agenda.

Some recent and older related posts:

June 10, 2013 in Elections and sentencing issues in political debates, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (8) | TrackBack

"High Federalism: Marijuana Legalization and the Limits of Federal Power to Regulate States"

The title of this post is the title of this new paper by David Schwartz which I just noticed via SSRN.  Here is the abstract:

The conflict between state marijuana legalization and the blanket federal marijuana prohibition of the Controlled Substances Act ("CSA") has created a federalism crisis in which the duties of state officials to adhere to state or federal law is unclear.  Current federalism doctrine cannot even tell us whether or not a local police officer who encounters a person in state-authorized possession of marijuana must arrest the person and seize the marijuana.

The two most clearly applicable federalism doctrines -- the Tenth Amendment anti-commmandeering doctrine and the doctrine of federal preemption of state law under the Supremacy Clause -- offer only unsatisfactory answers.  Anti-commandeering doctrine is incapable of telling us whether a federally imposed duty to arrest and seize the marijuana possessor is impermissible commandeering, permissible "general applicability," or permissible preemption, let alone answer the more complex federalism questions posed by state marijuana legalization.  Alternatively, a strong preemption approach, while capable of producing consistent results in theory, would entail the virtual abandonment of the anti-commandeering doctrine and of judicial enforcement of federalism more generally, while at the same time violating important premises of the "political safeguards of federalism" theory.

The article argues that courts should pursue a middle path by applying a rigorous presumption against commandeering when considering the obligation of state officials to adhere to federal laws.  This approach is faithful to consensus principles of federalism that should command the agreement of judges and academics on both sides of the judicial versus political safeguards of federalism debate.  A presumption against commandeering, when applied to the CSA, requires that state officials be afforded broad latitude to enforce their states' legalization laws and have no compelled obligations to enforce federal law beyond a duty to refrain from active obstruction of federal officers.  The extent of Congress's power to command state official compliance with the CSA can be considered if and when such an amendment to the CSA is under serious congressional consideration" something that may never occur given the current political trend.

June 10, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

With two opinion days this week, any predictions on coming SCOTUS sentencing decisions?

The fine folks at SCOTUSblog report that we will be getting opinions in argued cases from SCOTUS both today and on Thursday, June 13.  With two opinion days this week, and a third of the nine longest pending cases involving sentencing issues, I am inclined to predict there will be at least some notable Supreme Court sentencing action this week.

So, dear reader, before we start getting some SCOTUSblog updates in the next hour, how about some predictions about which opinions we might get this week and what they might now say.  Specifically, I have my eyes firmly fixed for Alleyne (on the Sixth Amendment's application to mandatory minimums), and Descamps (another ACCA application case), and Peugh (concerning ex post facto limits post-Booker application of new guidelines).  

Based on nothing but rank speculation, I will guess/predict that we get Descamps today, Peugh on Thursday, and Alleyne next week.  And, based on my belief that the Supreme Court remains the most pro-defendant appellate court on sentencing issues in the country, I will also guess/predict that the defendant prevails in all three of these cases.

UPDATE We actually ended up getting Peugh on June 10 (discussed here and here), and it was a 5-4 victory for the federal defendant.  Based on the tone and votes and timing of Peugh, I am now starting to think Alleyne and Descamps will come down together, and perhaps not until next week.

June 10, 2013 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Sunday, June 09, 2013

"New Sesame Workshop film helps children of jailed parents"

ElmoThe title of this post is the headline of this notable new segment which ran this morning on the CBS Sunday Morning show.  Here are excerpts:

A new program is aiming to make kids in crisis streetwise -- "Sesame Street" wise, that is.  Seth Doane reports:

At 24, Francis Adjei is now the head of his household, a role he never imagined having to play. "One day, we're all together having dinner; following day, she's in jail. And we don't know what to do," he said.

Two years ago his mother, Jackie Pokuwaah, A Ghanaian immigrant, was convicted of grand larceny, and is serving a seven-and-a-half-year sentence at a state penitentiary.  Adjei had to drop out of school, and now spends his days managing his siblings' schedules, trying to keep them in school....

"When the police came and took your mom," Doane asked Francis, "did anyone ever explain what it meant to be incarcerated?"

"To the children? No," he replied. "We've never went down that direct path, just kind of been beating around the bush."...

But soon Adjei and his brothers and sisters will find a little help on a familiar street: Sesame Street.

Melissa Dino is in charge of a Sesame Workshop production aimed at helping families like Francis' cope.  She told Doane she was struck by the lack of resources for those with an incarcerated parent.  The new, 30-minute documentary mixes the fictional with real-life.  It will not air on the regular "Sesame Street" show, but will be distributed this week to therapists' offices, schools and prisons.

And there is certainly a built-in audience.  According to the Pew Charitable Trust, there are currently 2.3 million Americans behind bars, the largest prison population in the world, which means one in every 28 kids in the U.S. has a parent in prison.  That's up from one in 125 just 25 years ago.

Some of those 2.7 million minors -- including Francis' sister, Breanna Amankwah -- say they don't like people to know a parent is in prison. "When it comes up in a conversation, I just feel uncomfortable, like, really uncomfortable," she told Doane. "I don't feel like talking. I kind of feel a little stiff, and I don't really feel normal."...

Dino said children sometimes think it's their fault that a parent was incarcerated. "They have difficult, guilty feelings; they have all kinds of feelings. They're not sure how to express them," she said. "Incarcerated" features a Muppet character, Alex, who has experienced a father who is in jail. The colorful character is, in effect, color-blind.

"The beauty of a Muppet," said Dino, "is they can be any color. They can speak to so many different children.  Alex is orange and he's got blue hair, so he doesn't speak to any one particular ethnicity or race.  He speaks to all children."

Sesame Workshop, which let us peek behind the scenes at its nine-month-long process, has in recent years tackled issues from divorce to deployment to death.  And Sesame recognized that incarceration was an issue that affected kids, too.  More than 50 percent (54%) of people behind bars have a child under 18....  So Sesame Street, in its simple, familiar way, is trying to break it down, using imaginary characters to explore — and explain — what was once unimaginable, but now more and more common.

Though the image I have reprinted above is meant to add a little levity to this story, I want to compliment Sesame Workshop for taking on this important and serious issue.  The materials assembled by Sesame at the webpage "Little Children, Big Challenges: Incarceration", which provides an array of resources as a toolkit for kids and parents, seems to be developed and delivered with a keen sense of the keen problems that modern mass incarceration has helped create for today's families and children.

June 9, 2013 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4) | TrackBack

After Night Stalker's demise, new talk of new initiative to kick start machinery of death in California

This new local article, which carries the amusing headlined "Initiative supporters want to bring California death penalty back to life," discusses what seems to be a serious effort by some serious folks to use a ballot initiative to try to get the death penalty operational again in the state with the largest death row in this nation.  Here are the basics:

Frustrated by a recent appeals court ruling that invalidates the state's lethal injection procedures, supporters of the death penalty in California plan to launch a campaign to bring the suspended system back to life.

Death penalty supporters hope to circumvent legal challenges to executions through a new initiative that would put in place a single-drug injection procedure for inmates condemned to death, such as the infamous Night Stalker serial killer Richard Ramirez, who died Friday of natural causes.

Advocates of the single-injection protocol seek to avoid supply and legal issues related to the triple-drug protocol used prior to a 2006 moratorium on the death penalty. The ballot initiative would also reform the appellate process to ensure executions for Death Row inmates who have exhausted all appeals and where questions of guilt don't exist.

The proposed initiative would be carried by a coalition of law enforcement, district attorneys, and death penalty proponents who opposed Proposition 34 in the 2012 statewide election. That measure, defeated by 52 percent of voters, would have abolished the death penalty and replaced it with life in prison without parole.

"The initiative will be to streamline and fix the death penalty," said San Bernardino County District Attorney Michael Ramos, a vocal presence during the campaign opposing Proposition 34. "As the voters have indicated, they still believe in capital punishment, and as I asked the voters to oppose Proposition 34, I told them I would do anything I could to fix the issue of delayed justice," Ramos said. "That's what happens with these families. It's not justice if it's delayed, especially in these most gruesome murders."

Legal challenges to execution procedures, raised in both state and federal courts, led to a moratorium on executions in California that has been in place since 2006. More than 725 Death Row inmates await execution, while more than a dozen who have exhausted legal appeals are eligible for immediate execution. Ramirez, convicted in 1989, was among them before his death Friday from liver failure at the age of 53....

Michael Rushford, president of the pro-death penalty Criminal Justice Legal Foundation, said his group will be involved in the initiative campaign, as it had been against Proposition 34. The hope is to get the measure on the ballot for the next statewide election on June 3, 2014. "We want to implement the same process that the state of Virginia and other states have implemented for these cases to be resolved in six years," Rushford said. "California is unique in the United States. We have the longest, most-drawn-out process."

Anti-death penalty groups, such as the American Civil Liberties Union of California, argue the policy is much too costly for the taxpayers, and the risk remains of wrongfully executing an innocent person. The ACLU of California is still planning its next move after the defeat of the 2012 ballot measure.

"We are still deciding what our next step will be," said Ana Zamora, senior policy advocate for the American Civil Liberties Union of California. "We know the problem will not be fixed. It doesn't reduce violent crime, and Californians are extremely concerned about the real risk of executing an innocent person." Zamora said, despite the loss on Proposition 34, the close vote is cause for encouragement....

Zamora called Ramirez's death from natural causes on Friday, "a perfect example" of the "broken death penalty." "People on California's Death Row are more likely to die of old age or illness than they are likely to die from execution," she said. "The death penalty is absolutely a charade."

June 9, 2013 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

"Iowa judge calls sentencing guidelines for meth dealers 'flawed'"

The title of this post is the headline of this local article discussing a significant federal sentencing decision handed down late Friday.  Here are the basics:

Sioux City-based U.S. District Judge Mark Bennett on Friday became one of a handful of U.S. judges to declare public opposition to federal sentencing guidelines for methamphetamine dealers. He wrote that he considers them to be “fundamentally flawed,” not based on empirical data and too harsh for lower-level drug figures.

Bennett — declaring in a 44-page ruling that he has a “fundamental policy disagreement” with the methamphetamine portion of guidelines that federal judges are supposed to consider in sentencing criminals — cut the sentence of Sioux City drug dealer Willie Hayes to six years and three months from a possible 15 years, eight months....

Bennett, a longtime critic of mandatory minimum sentences, notes in his opinion that the methamphetamine guidelines lack the depth of other portions of the sentencing blueprint and appear to be more influenced by politics than by science. Methamphetamine dealers in recent years have faced much harsher sentences than dealers of marijuana, cocaine or heroin and run into mandatory minimum sentences for handling a much lower quantity of drug.

“The methamphetamine guidelines are fundamentally flawed because they fail to consider additional factors beyond quantity,” Bennett wrote. “The system is too severe in the indiscriminate way it treats offenders … . Since the methamphetamine guidelines are fundamentally flawed, I find that they fail to promote the purposes of sentencing” outlined in federal law.

Des Moines defense attorney Angela Campbell called the ruling “a very big deal, and it’s also something that’s been coming for a while.”...

Bennett’s ruling borrows reasoning from two other federal judges who have made similar stands — Joseph Bataillon of Nebraska and John Gleeson of New York. “He’s not a lone voice in the wilderness,” said Iowa defense attorney F. Montgomery Brown. And Bennett’s ruling likely will have an affect on how federal drug cases are argued.

“It’s an argument that defense lawyers in both the Northern and Southern districts of Iowa need to make,” Brown said. “It’s malpractice not to.”

I concur with the sentiment that Judge Bennett's work in US v. Hayes (available here) is a "very big deal," and I believe that federal defense attorneys nationwide, not just in Iowa, ought to be raising arguments based on Hayes in every federal meth sentencing case.

June 9, 2013 in Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Saturday, June 08, 2013

"Man in case of 3 Ohio women held captive faces 329 charges including murder, rape, kidnapping"

The title of this post is the headline of this AP report on the indictments coming from a local grand jury on Friday which charge Ariel Castro with hundreds of crimes for spending a decade torturing three young women in his Cleveland home.  Here are the details:

A man accused of holding three women captive for about a decade in his Cleveland home — sometimes restraining them in chains — has been indicted by a grand jury on 329 charges, including aggravated murder, rape and kidnapping, prosecutors said.

Ariel Castro, 52, is accused of kidnapping Amanda Berry, Gina DeJesus and Michelle Knight and holding keeping them inside his the run-down home, along with a 6-year-old girl he fathered with Berry. A Cuyahoga County grand jury returned the indictment Friday against Castro, a former school bus driver fired last fall.

He faces two counts of aggravated murder related to one act, saying he purposely caused the unlawful termination of one of the women’s pregnancies. Castro also was indicted on 139 counts of rape, 177 counts of kidnapping, seven counts of gross sexual imposition, three counts of felonious assault and one count of possession of criminal tools.

Cuyahoga County prosecutor Tim McGinty said the indictment covers only the period from August 2002, when the first of the women disappeared, to February 2007.

The indictment refers to the women as Jane Doe 1, Jane Doe 2 and Jane Doe 3 and gives a glimpse into the circumstances of their captivity. The aggravated murder counts stem from the unlawful termination of Jane Doe 1’s pregnancy in late 2006 or early 2007, the indictment says.

It says Castro restrained the women, sometimes chaining them to a pole in a basement, to a bedroom heater or inside a van. It says one of the women tried to escape and he assaulted her with a vacuum cord around her neck.

Castro’s attorneys have said he would plead not guilty to any indictment. Castro, during a brief court appearance last month, tried to hide his face, tucking his chin inside his shirt collar, and did not speak. Castro is being held on $8 million bail. He has been taken off suicide prevention watch, jail officials said this week. He has told jail guards he won’t accept news media interview requests....

The women had gone missing separately between 2002 and 2004, when they were 14, 16 and 20 years old. They haven’t spoken publicly since their rescue....

Castro will be arraigned on the charges next week, and a trial judge will then be assigned.

The investigation continues, said McGinty, the prosecutor. When the indictment process is completed, the county prosecutor’s capital review committee will weigh whether the case is appropriate for seeking the death penalty. Days after the women were rescued from Castro’s home, McGinty had said at a news conference that capital punishment “must be reserved for those crimes that are truly the worst examples of human conduct.”...

Attorneys for the three women said Friday they were letting the judicial process unfold in the case. “We have a great legal system plus confidence and faith in the prosecutor’s office and its decisions,” they said in an emailed statement.

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June 8, 2013 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

DOJ unveils new plans and programming for helping crime victims

V21Report_thumbnailAs reported in this press release, the US Department of Justice yesterday "unveiled a plan calling for sweeping changes to advance crime victims’ rights and services in the 21st century."  Here is more from the press release about this interesting and positive development:

Developed by the Office of Justice Programs (OJP) and Office for Victims of Crime (OVC), Vision 21: Transforming Victim Services Final Report [available via this webpage], is the first collective examination in 15 years of current U.S. practices, funding and outreach in the crime victims’ field.

“Today’s announcement marks the latest step forward in the Department’s ongoing work to protect and empower those who have been victimized,” said Attorney General Eric Holder. “Through Vision 21, we’ve gained an unprecedented understanding of the current state of victim services from coast to coast. And we've developed groundbreaking strategies for responding to urgent needs, combating violence and abuse, and providing critical support to crime victims.”

Vision 21 documents the need to better understand who is affected by crime, how they are affected, how they seek help, who reports victimization and the reasons why some victims do not.  The report calls for continuous, rather than episodic, strategic planning in the victim assistance field and for statutory, policy and programmatic flexibility to address enduring and emerging crime victim issues.  It also calls for the development of evidence-based knowledge founded on data collection and analysis of victimization and emerging victimization trends, services, behaviors and enforcement efforts.

The full 60-page "Final Report" (available here) discusses so many issues relating to crime victims, it is hard to effectively summarize its coverage.  Because I have long been concerned about crime victims having ready access to legal counsel to effectively protect and pursue their statutory rights under the federal Crime Victims Rights Act, I found this passage from the report concerning these matters to be especially worth highlighting:

Recognizing that enforcement of crime victims’ rights was inconsistent, CVRA’s bipartisan sponsors understood that rights enforcement would require access to legal services and professional legal representation at tribal, state, and federal levels.  CVRA authorized funding for the “support of organizations that provide legal counsel and support services for victims in criminal cases for the enforcement of crime victims’ rights.”

The 2004 legislation built on a demonstration project launched in 2002 by OVC, which developed and evaluated a network of legal clinics that might serve as models for the provision of pro bono legal representation of victims in criminal court.  Funding for the OVC demonstration project ended in 2009.  Most of the 12 legal clinics that were established in a handful of states under CVRA and the OVC demonstration project have since significantly decreased operations or closed.  The full promise of CVRA was not realized, although the many legal issues facing crime victims remain.  Moreover, a system of effective legal services that meets the needs of all crime victims must acknowledge and contend with a sobering reality: the majority of crime victims in the United States never contact law enforcement or step across the threshold of a courtroom.

June 8, 2013 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Friday, June 07, 2013

Senate confirms new USSC Commissioners Barkow, Breyer and Pryor

Who says Congress cannot get anything sensible done these days?  As reported in this official press release, the "United States Senate yesterday unanimously confirmed the nominations of three new members of the United States Sentencing Commission: Rachel E. Barkow of New York, Judge Charles R. Breyer of California, and Judge William H. Pryor, Jr. of Alabama."   Hooray, and here is more from the release on the newbies and the Commissioners they now join:

Barkow is the Segal Family Professor of Regulatory Law and Policy at the New York University School of Law, where she focuses her teaching and research on criminal and administrative law....  Barkow began her legal career by clerking for Supreme Court Justice Antonin Scalia from 1997 to 1998, and before that for Judge Laurence H. Silberman ofthe United States Court of Appeals for the District of Columbia Circuit from 1996 to 1997.  She received her J.D. magna cum laude in 1996 from Harvard Law School and her B.A. with distinction in 1993 from Northwestern University.

Breyer has served as a United States District Judge in the Northern District of California since 1998.  Previously, he [had] brief stint as Chief Assistant District Attorney for San Francisco in 1979.  From 1973 to 1974, Breyer worked as an Assistant Special Prosecutor on the Watergate Special Prosecution Force.  He also served as an Assistant District Attorney in San Francisco from 1967 to 1973.  Breyer began his legal career as a law clerk to Judge Oliver J. Carter of the United States District Court for the Northern District of California.  He received his J.D. in 1966 from the University of California at Berkeley Boalt Hall School of Law and his B.A. cum laude in 1963 from Harvard College.

Pryor has served as a United States Circuit Judge for the Eleventh Circuit since 2004.  He has also taught federal jurisdiction at the University of Alabama School of Law and has served as an adjunct professor at the Cumberland School of Law at Samford University. Prior to his appointment to the bench, Pryor served as the Attorney General of the State of Alabama from 1997 to 2004 and as a Deputy Attorney General from 1995 to 1997....  From 1987 to 1988, Judge Pryor served as a law cl erk for Judge John Minor Wisdom of the United States Court of Appeals for the Fifth Circuit.  He received his J.D. magna cum laude in 1987 from Tulane University Law School, where he served as Editor-in-Chief of the Tulane Law Review, and his B.A. magna cum laude in 1984 from Northeast Louisiana University (now University of Louisiana at Monroe).

By statute, the Commission is composed of seven voting members and two non-voting ex-officio members.  No more than four commissioners may be members of the same political party, and at least three shall be federal judges.  The Commission’s four other voting members are Judge Patti Saris of the District of Massachusetts (chair); Chief Judge Ricardo H. Hinojosa of the Southern District of Texas; Dabney L. Friedrich of Maryland; and Judge Ketanji B. Jackson of the District of Columbia.

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June 7, 2013 in Who Sentences? | Permalink | Comments (6) | TrackBack

"A Tale of Sound & Fury (But No Transcript): In Defense of Judge Edith Jones"

Edith-Jones-Judge-Edith-H-Jones-Edith-Hollan-JonesThe title of this post is the title of this notable lengthy commentary authored by Tamara Tabo at Above the Law concerning the new complaint of judicial misconduct filed against Fifth Circuit Judge Edith Jones earlier this week. The piece merits a full read for anyone following this brouhaha, and here are some excerpts:

I interned with and clerked for Judge Jones. I didn’t attend the event in Philadelphia [which served as the basis for the complain], and I haven’t spoken with her about this situation, but I don’t claim to be a fully impartial observer. I could be the first among many to attest to her dignity, intellect, and impeccable ethical standards. I could even tell you how generous with her time and supportive she’s been of my law school, a historically (and still predominantly) black institution.

But I don’t need to do that. I don’t need to offer a character reference in order to rebut the accusations made in this complaint. I don’t even need to contest many of the facts that the complaint alleges. While there’s not enough space here to evaluate each of the charges the complaint makes, let’s have a closer look at a few of them, starting with her alleged comments on race.

According to the complaint, Judge Jones asserted that “certain racial groups commit more of these crimes than others.” She said that “[s]adly some groups seem to commit more heinous crimes than others.” When asked to explain her remarks, she stated that there was “no arguing” that “Blacks and Hispanics” outnumber “Anglos” on death row and “sadly” it was a “statistical fact” that people “from these racial groups get involved in more violent crime.”

Note that she did not say that race causes criminality, only that we see a disproportionately high number of violent offenders of certain races. These are facts. Even without knowing her, you could easily conclude that Judge Jones thinks these are unpleasant facts. That would certainly explain her alleged repeated use of the word “sadly” in reference to these statistics about race and crime.

If Judge Jones had followed these facts with a different policy claim, would we consider factual statements to be proof of impartiality or impropriety? Or is it less that what she stated was false and more that it was simply not to some liberal audience members’ liking? One could cite these same facts, then proceed to argue for all manner of social reforms — ones that address the causes of the racial disparity in criminality. Doing so would be entirely compatible with what Judge Jones allegedly said during her speech.

What if Judge Jones had said that males were more likely to commit violent crimes than females? Would that be a problem? More violent offenders in our justice system are, in fact, male than female, after all. Would any reasonable person accuse Judge Jones — herself a non-male! — of undermining “public confidence in the judiciary” or being so gender-biased that she would be unfit to handle criminal cases? I hope not.

Correlation is not causation. Nothing in the complaint shows that Judge Jones suggested or thinks that race causes criminality.

The complaint further alleges that Judge Jones engaged in misconduct when she discussed capital defendants who raise claims of mental retardation. The complaint’s footnote 10 states, “This term is outdated — now generally replaced by “Intellectually Disabled” — and thus Judge Jones’s use of the term “mental retardation” is kept in quotations.”

I work with clients (in a clinical setting, not a legal one) who suffer from severe cognitive impairments. In that setting, I wouldn’t describe a client as “mentally retarded,” because we’re after more precise diagnoses and because, yes, that catch-all term has fallen out of favor. But do you know who does routinely use the term “mentally retarded” in a professional setting? The United States Supreme Court — as quoted in the complaint’s footnote 11, for example. Using that term suggests a willingness to use a legal term of art, not necessarily some outmoded insensitivity to people, say, with Down’s Syndrome.

It is not disrespectful of individuals with disabilities to be angered by false claims of mental retardation, as Judge Jones allegedly was. It does not malign their dignity to suggest that many are capable of choosing between good and evil. Just because one thinks that a particular legal claim is frequently abused does not mean that every instance of such a claim is abusive or legally frivolous. We’re accusing one of the most respected judges of the federal judiciary of misconduct over something that even the Onion satirizes.

The complaint alleges that Judge Jones “indicated that any Mexican National would rather be on death row in the United States than in a Mexican prison” and “stated that Mexico ‘wasn’t about to provide any of their own citizens with the kind of legal protections the person would get in the United States.” The complaint does not even bother to contest this joke, since it’s (a) a joke, and (b) uncontestable. Even the U.S. consulate helpfully reminds U.S. tourists to Mexico that they won’t benefit from little perks of the American justice system such as the presumption of innocence....

What is it we expect judges to talk about when we invite them to speak, if not some “view from the bench”? We expect them to draw on their actual experiences with actual cases. That is, frankly, why most judges are more interesting to listen to than most law professors.

We rightly expect that judges will not publicly comment on cases currently pending before them. To be clear: no affiant claimed that Judge Jones did so. Once again, even if we take their account of what she said as true, it just doesn’t add up to anything worthy of censure.

If there’s one woman on the planet who doesn’t need a pipsqueak like me defending her, that woman is likely Edith H. Jones. She likely will not dignify these charges with any response. I, however, am not so constrained by that sort of dignity. Obviously.

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June 7, 2013 in Death Penalty Reforms, Offender Characteristics, Race, Class, and Gender, Who Sentences? | Permalink | Comments (11) | TrackBack