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November 15, 2008

"Changing Lives, Changing Minds"

The title of this post is the title of this intriguing new blog, which I learned about through this e-mail (which I have received permission to reprint): 

I am the marketing assistant for Changing Lives Through Literature, an incarceration alternative founded on the power of literature to transform lives of criminal offenders. Earlier this month, we started a new blog devoted to criminal justice reform, alternatives to incarceration, and the influence of literature on our lives. The blog is called Changing Lives, Changing Minds and is updated twice a week at http://cltl.umassd.edu/blog.  As part of our blog, we feature links to programs with similar interests and missions to Changing Lives Through Literature. 

We've included Sentencing Law and Policy in our link list and hope you will consider linking Changing Lives, Changing Minds on your blog in return. We are interested in the work that Sentencing Law and Policy is doing.  We encourage you (and members of your organization) to check out our blog and consider writing a 500-750 word guest post related to criminal justice reform, incarceration alternatives, or the power of literature to transform lives. The post does not have to be original -- if you have already written a piece (for your own blog or elsewhere) that you feel would be appropriate, we'd be more than happy to publish it on our site. In all cases we would link back to the Sentencing Law and Policy site.  I hope you will check out our site and consider writing a guest post. Keep up the great work!

Though I do not have an "organization" (unless you count my family cat who often keeps me company when I'm blogging from home), I surmise from this openning post that this new blog would welcome guest posts from regular readers/commentors on SL&P.

November 15, 2008 in Criminal Sentences Alternatives | Permalink | Comments (0) | TrackBack

More proof that pardon scandals rarely get completely forgotten

The latest proof that bad pardoning actions can cast a long shadow comes from this new article at Politico, headlined "Clinton scandal figure on Justice team."  Here are a few details:

President-elect Barack Obama tapped a major campaign bundler and a former U.S. attorney who got caught up in Bill Clinton's 2001 pardons scandal to serve on the 14-member Justice Department review team announced Friday.

Alejandro Mayorkas, a former U.S. attorney in California, drew controversy in 2001 for calling the White House on behalf of Carlos Vignali, a convicted drug dealer who was seeking a presidential commutation.... The House Committee of Government Reform cited Mayorkas in a report critical of Southern California politicians who pushed Clinton to release Carlos Vignali, saying Mayorkas should have been aware of Horacio Vignali's questionable background, according to a Los Angeles Times story published in March 2002.

Mayorkas told the newspaper that the criticism was fair, and he did not know the elder Vignali very well. "It is reasonable to expect that someone in my position would do his or her due diligence to learn that information," he told the Los Angeles Times. "I made a mistake."

The Obama transition team did not immediately respond to requests for comment about Mayorkas, who will serve on the Justice Department review team.

The saddest aspect of this story is the fact that a past pardon scandal is overshadowing the important decision by the Obama transition team to create a "team of 14 law scholars, corporate attorneys and former Clinton appointees who will look at civil rights, legal services and election law."  The full review team is listed here at change.gov.

November 15, 2008 in Clemency and Pardons, Criminal justice in the Obama Administration | Permalink | Comments (0) | TrackBack

Another notable example of capital plea bargaining

Thanks to this post at C&C, I saw this news article from Utah describing another case in which the threat of the death penalty helped secure a ready and efficient resolution to a murder charge.  Here are the basics from the start of the news report:

A Sanpete County man avoided the death penalty Thursday by admitting to strangling his former girlfriend in April, and then killing a man he hated. Donald Bret Richardson pleaded guilty in 6th District Court to two counts of first-degree felony aggravated murder.

As part of a plea deal, prosecutors agreed to recommend that Richardson, 48, serve life in prison without the possibility of parole. Defense attorneys James Valdez and McCaye Christianson said Thursday the resolution accomplished their goal of saving Richardson's life. "For a long time he wanted the death penalty," said Valdez. Added Christianson: "It's a peaceful resolution to a horrible, tragic episode."

As regular readers know, I think an important and underexamined aspect of the death penalty is its impact on plea bargaining and other pre-trial aspects of the investigation and prosecution of horrible murders.

Some related posts:

November 15, 2008 in Death Penalty Reforms | Permalink | Comments (4) | TrackBack

November 14, 2008

SCOTUS takes up three new criminal cases

The Supreme Court today, as detailed in this SCOTUSblog post, took up three new federal criminal cases.  Though none of the cases seem to be blockbusters, they all merit watching in 2009.  Here are the basic thanks to Lyle Denniston's great reporting at SCOTUSblog:

[T]he Court will decide whether an individual can be retried on charges on which a jury could not agree in an earlier trial in which the jury acquitted on other charges (Yeager v. U.S., 08-67), whether using a telephone or e-mail to buy drugs for personal use converts that minor possession crime into a felony, with heavier penalties (Abuelhawa v. U.S., 08-192), and whether a federal law imposing an enhanced sentence for firing a gun during a drug crime or other violent crime applies if the gun was fired accidentally or involuntarily (Dean v. U.S., 08-5274).

The cases probably will be argued in the session that begins Feb. 23 and continues through March 4....

The [Yeager] case involving partial convictions and acquittals is a test of the application of a 1970 Supreme Court decision, Ashe v. Swenson, ruling that the Fifth Amendment’s ban on being tried more than once for the same crime includes the doctrine that an issue once raised and litigated cannot be raised in a later case — the doctrine of “collateral estoppel” or “issue-preclusion.”...

In agreeing [in Abuelhawa] to rule on the escalation of a drug-possession misdemeanor crime into a felony, when the purchase of drugs was done by using a cellphone or other communications device, the Court was confronted with another split in the lower courts....

The newly granted firearms case [Dean] involves a federal law that provides for a ten-year minimum sentence if a gun is fired during a crime of violence or a drug-trafficking crime.  The issue is whether the added sentence is to be imposed when a gun went off without the accused having intend to fire it.

I could make an argument that all three cases in essence involve sentencing issues, since there is no dispute that the defendants in all three of these cases committed some federal crime.  But, though I can put a sentencing spin on all federal criminal cases, the Deancase involve the application of a statutory mandatory minimum in a setting that could make it especially noteworthy for various reasons. 

November 14, 2008 in Who Sentences | Permalink | Comments (2) | TrackBack

Friday federal sentencing lesson: do not trust a Quaker ... a U Penn Quaker, that is

Because I graduated from Penntwo rival institutions, I may get too much schadenfreude from stories about University of Pennsylvania Quakers getting into serious federal sentencing trouble.  Still, I cannot help but wonder what Ben Franklin might say, in the wake of this recent story about the Penn student hacker and child-porn downloader, about this new story concerning the sentencing of Penn alum involved in identity fraud.  Here are the basics:

University of Pennsylvania graduate Edward Anderton of Everett, Wash., admitted teaming with his jet-setting college girlfriend, Jocelyn Kirsch, to steal the identities of friends and neighbors in Philadelphia in 2006 and 2007.

Together, they gleaned more than $116,000 in goods and services. They used the money for expensive salon visits, fancy dinners and lavish trips to places such as Paris and Hawaii.   A U.S. attorney has called them "poster children" for identity fraud.

More details about the case can be found in this news report, which indicates that the Bonnie to Anderton's Clyde has already been sentenced harshly:

Kirsch, 23, a former Drexel University student who drew heavy media coverage when her photo, posed in a bikini, was posted on the Internet, was sentenced last month to 70 to 81 months in prison by U.S. District Judge Eduardo C. Robreno.

Kirsch, who experts testified has serious psychological problems and a history of retail theft, including charges she used a stolen credit card while on bail awaiting a federal court hearing, faced a longer potential prison term than Anderton...

In a federal court filing this month, Anderton's attorney, Lawrence S. Krasner, argued that Anderton deserves a lesser sentence than his former paramour because his criminal conduct lasted only as long as the relationship with Kirsch.  Krasner wrote that Anderton has worked since his guilty plea saving money to pay victim restitution....

Assistant U.S. Attorney Louis D. Lappen filed a sentencing memo urging Robreno to imposed a sentence within the federal sentencing guideline range of 57 to 65 months.

Perhaps Professors at U Penn need to start reminding all students of Penn's motto, "Leges sine moribus vanae," which roughly means "Laws without morals are useless."

UPDATE:  According to this new press report on the sentencing, it seems that Anderton got a below-guideline sentence:

Edward K. Anderton, the honor student and University of Pennsylvania economics grad whose life was consumed by his romantic and criminal partnership with his girlfriend, was sentenced this afternoon to 48 months in prison by a federal judge.

Anderton, 25, made an emotional, self-abasing 20-minute statement to the judge in which he apologized to his victims, his parents and family, and others that he said his conduct harmed.

November 14, 2008 in Celebrity sentencings | Permalink | Comments (4) | TrackBack

DC Circuit splits over reasonableness of probation sentence for tax cheat

The DC Circuit issues relatively few sentencing decisions, but those it hands down tend to be quite thoughtful.  Today's split panel decision in US v. Gardellini, No. 07-3089 (DC Cir. Nov. 14, 2008) (available here), is no exception. Here is how the majority opinion starts:

This case exemplifies our deferential substantive review of sentences – including outside-the-Guidelines sentences – in the wake of Booker v. United States, 543 U.S. 220 (2005), and Gall v. United States, 128 S. Ct. 586 (2007).  The Sentencing Guidelines range for defendant Gardellini’s tax offense was 10 to 16 months. The District Court imposed probation and a fine.  On appeal, the Government challenges that below-Guidelines sentence as substantively unreasonable.  But the Government’s Guidelines-centric appellate argument overlooks the twin points that the Supreme Court has stressed in its recent sentencing decisions: The Guidelines now are advisory only, and substantive appellate review in sentencing cases is narrow and deferential. As the case law in the courts of appeals since Gall demonstrates, it will be the unusual case when we reverse a district court sentence – whether within, above, or below the applicable Guidelines range – as substantively unreasonable.  Based on the principles set forth in Booker and Gall, we affirm the District Court’s judgment in this case.

Here is a snippet from the start of the dissenting opinion:

[I]n sentencing Gardellini, the district court gave no weight to one of the goals stated by 18 U.S.C. § 3553(a)(2)(B): deterring others from committing similar crimes. As a result, whereas the Sentencing Guidelines set a range of 10–16 months imprisonment, the court sentenced Gardellini to probation and a $15,000 fine.  (The probation, I should note, will be served in Belgium, where his wife is an EU official. He will thus not be subject to the usual restrictions inherent in probation, such as susceptibility to searches, which the Supreme Court has found important in evaluating the reasonableness of a probation sentence. See Gall v. United States, 128 S. Ct. 586, 595-96 (2007).)  I believe disregard of the deterrence factor was an abuse of discretion and would therefore reverse and remand for resentencing.

November 14, 2008 in Booker in the Circuits | Permalink | Comments (2) | TrackBack

As goes Maryland, so goes the nation on capital punishment?

The stories surrounding Maryland's policy debates over the death penalty have been dynamics and interesting for quite sometime.  But now that a commission appointed by Maryland's governor has formally recommended abolishing capital punishment, any and everyone interesting in death penalty law and policy ought to be keeping a very close eye on what goes on in this state.  Here are the latest specifics from this Baltimore Sun article:

Armed with a recommendation from a state commission to abolish Maryland's death penalty, opponents who have long sought to end the practice are hoping to finally put the matter to rest by pressuring key lawmakers to switch their votes....

Death penalty opponents plan to be active in the districts of lawmakers who might be swayed. They are likely to enlist the likes of Sister Helen Prejean, whose story of counseling a death-row inmate became the film Dead Man Walking, and Baltimore Archbishop Edwin F. O'Brien. Cardinal William H. Keeler, who previously held that post, has personally reached out to Catholic lawmakers on the issue.

"We're going to make it as difficult as a possible for members to vote against the death penalty repeal," said Richard J. Dowling, a lobbyist for the Maryland Catholic Conference. "We're not going to pull any punches. We're going to pull out all the stops."

It's unclear what kind of impact the commission's final report, due next month, will have on the debate. The Maryland commission is basing its recommendation in part on racial and jurisdictional disparities in the application of capital punishment -- findings contained in previous reports.

One reason death penalty abolitionists are wise to "pull out all the stops" in Maryland is because national legislators and activists in and around DC will not be able avoid watching (and learning) from what happens in Maryland.  And, unlike in Vegas, what happens in Maryland on this issue likely won't stay in Maryland.  If Maryland does abolish the death penalty legislatively, capital punishment abolitionists likely will be emboldened to take their anti-death penalty fight nationally.  But, if Maryland is unable to follow New Jersey's lead here, I think it will be a real significant blow to the anti-death penalty movement.

November 14, 2008 in Death Penalty Reforms | Permalink | Comments (1) | TrackBack

Developing criminal justice "wish list" for the Obama Administration

Over at the White Collar Crim Prof Blog, Ellen Podgor has this terrifically interesting "Wish List to President Barack Obama & The Next AG."  Ellen's wish list is lengthy (even though only focused on white-collar topics), and here are a few of her provocative and thoughtful wishes that caught my eye:

Needless to say, I could add dozens of my wishes to this list, especially if I were to branch out beyond white-collar topics.  But on a Friday, I am especially interested to hear some criminal justice wishes from readers.  

So, dear readers, please use the comments for expressing your wishes on criminal justice topics for the next Administration.  Though I seriously doubt the President-Elect or his future AG regularly read this blog, one never knows how many cyberspace genies might try to help make a good criminal justice wish comes true.

November 14, 2008 in Criminal justice in the Obama Administration | Permalink | Comments (4) | TrackBack

November 13, 2008

"Distributive Principles of Criminal Law: Who Should be Punished How Much?"

Via e-mail, I just received an announcement about Paul Robinson's new book, which is titled "Distributive Principles of Criminal Law: Who Should be Punished How Much."  This Amazon entry provides links to small parts of the book and this product description:

The rules governing who will be punished and how much determine a society's success in two of its most fundamental functions: doing justice and protecting citizens from crime.  Drawing from the existing theoretical literature and adding to it recent insights from the social sciences, Paul Robinson describes the nature of the practical challenge in setting rational punishment principles, how past efforts have failed, and the alternatives that have been tried.  He ultimately proposes a principle for distributing criminal liability and punishment that will be most likely to do justice and control crime.

Paul Robinson is one of the world's leading criminal law experts.  He has been writing about criminal liability and punishment issues for three decades, and has published dozens of influential articles in the best scholarly journals.  This long-awaited volume is a brilliant synthesis of social science research and legal reasoning that brings together three decades of work in a compelling line of argument that addresses all of the important issues in assessing liability and punishment.

November 13, 2008 in Recommended reading | Permalink | Comments (1) | TrackBack

"Behavioral Criminal Law and Economics"

The interesting title of this post is the title of this interesting looking new paper just posted on SSRN.  Here is the abstract:

A behavioral economics literature identifies how behaviorally-derived assumptions affect the economic analysis of criminal law and public law enforcement.  We review and extend that literature.  Specifically, we consider the effect of cognitive biases, prospect theory, hedonic adaptation, hyperbolic discounting, fairness preferences, and other deviations from standard economic assumptions on the optimal rules for deterring potential offenders and for regulating (or motivating) potential crime victims, legislators, police, prosecutors, judges, and juries.

November 13, 2008 in Recommended reading | Permalink | Comments (0) | TrackBack

Today's dog-bites-man headline in the sentencing world

This new story over the AP wire caught my eye because of its shocking headline: "Anne Hathaway's ex-boyfriend not enjoying prison."  Here's more:

Italian con man Raffaello Follieri, who went from dating actress Anne Hathawayto serving a prison term for fraud, isn't enjoying the "unspeakably unsanitary" conditions at a federal jail in Brooklyn.  Follieri's lawyer sent a letter to a judge this week complaining about the facility....

The lawyer, Flora Edwards, said things are so bad, it has made Follieri ill.  So far he has had a fever, blood in his urine, intestinal problems and shortness of breath.  Edwards asked the judge to have the 30-year-old transferred back to the federal jail in Manhattanwhere he was previously held.  The judge asked the government to look into Follieri's complaints.

Though the silly headline to this story was what first caught my eye (does anyone "enjoy" prison?), the fact that Follieri's complaints are making national news and bringing attention to prison conditions is also noteworthy.  Indeed, this AP story reminds me why I sometimes experience schadenfreude when celebrity defendants (with well-compensated attorneys) are exposed to the ugly underbelly of our modern criminal justice system.

November 13, 2008 in Celebrity sentencings | Permalink | Comments (1) | TrackBack

Ninth Circuit rocks while reviewing conditional plea efforts

A decision by the Ninth Circuit today in In re: Gallaher, No. 07-74593 (9th Cir. Nov. 13, 2008) (available here) is blogworthy in part because it reviews some intricate procedural issues.  But the ruling's openning paragraph also provides a good excuse for linking to this great clip of a great classic song as part of the great soundtrack of a great classic movie.  Here is that paragraph:

In the classic words of the Rolling Stones, “You can’t always get what you want.” The Rolling Stones, You Can’t Always Get What You Want, on Let It Bleed (Decca Records 1969).  A defendant who chooses to take a conditional plea cannot always assume the court will grant its consent.  And, a district court that wants to review a defendant’s Presentence Report (PSR) cannot do so until the defendant has granted his consent or entered a plea.  Consequently, we are forced to disappoint both the district court and the petitioner in this appeal.  Because the district court exercised its discretion to deny its consent to Gallaher’s conditional plea, the petition for a writ of mandamus must be denied.  However, because the district court erred by prematurely reviewing Gallaher’s PSR, we remand for further proceedings, and reassign this case to a new judge to consider de novo whether to accept Gallaher’s conditional plea.

November 13, 2008 in Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

A criminal justice blueprint for the new Prez that I hope gets followed

I received recently an e-mail announcing a new publication from the Center for American Progress Action Fund, entitled "Change for America: A Progressive Blueprint for the 44th President."  This website explains this new document and its coverage, and it provides this link to ten chapters available for download.  One chapter of special interest for sentencing fans is this one authored by Dawn Johnsen titled "Department of Justice: Restoring Integrity and the Rule of Law."

This whole chapter encouraging changes within DOJ should be enjoyable reading for anyone troubled by how the Justice Department has operated in recent years.  And anyone eager for serious state and federal sentencing reform should be especially pleased by the last three pages of this chapter, which are devoted to "longer-term priorities."  Here are some lengthy excerpts from this astute and effective part of CAP's blueprint for criminal justice change:

The attorney general should launch a coordinated set of initiatives that tackle the most fundamental and intractable problems in the criminal justice systems, both federal and state.... Although crime is largely a state and local responsibility, federal leadership can be enormously influential beyond the federal system through assistance that fosters innovation, supports research, and shares information about “what works” in combating crime....

Incarceration in the United States is an issue crying out for DOJ attention.  After holding steady for most of the 20th century, the federal prison population increased 10-fold in the last 25 years. The United States at all levels of government incarcerates more of its population than any other nation in the world, both in terms of the incarceration rate and in absolute numbers....

The costs, both financial and social, are astronomical. DOJ should undertake affirmative efforts to decrease prison populations without endangering public safety.  Again, states can provide useful models for each other and for the federal government. In response especially to budget crises, some states have successfully reduced incarceration rates without increasing crime. DOJ should study, disseminate, and implement best practices, which include increased and improved use of drug courts and treatment alternatives to incarceration....

DOJ should document the condition of indigent defense representation systems in the states, compile existing national and local standards for indigent defense systems and defense counsel, and bring stakeholders — judges, defenders, and prosecutors — together to devise solutions to the problem.  Beyond this, DOJ should advocate for federal funding for state indigent defense systems analogous to funding for state prosecutorial functions.... 

DOJ should strive to remedy the terribly disparate racial impact of current criminal law enforcement efforts. Under both the federal and state systems, African Americans suffer gravely disproportionate treatment at every stage — stops, arrest, prosecution, conviction, and sentencing. The causes and solutions are complex. The consequences, however, are devastating, in terms of shockingly disparate rates of imprisonment, which translate into political disenfranchisement and exclusion from student loans, jobs, and other life opportunities....

The solutions typically should not be race based, but should address the harms of problems such as ever-lengthening prison terms and the failures of the war on drugs.  Yet the gross disparate impacts on African Americans, and the perpetuation of the historic harms of discrimination, provide a special moral imperative for concerted attention to problems that harm us as a nation.

In addition, DOJ should pay special attention to how our criminal justice policies harm our nation’s youth, diminishing forever their life opportunities.  Most obvious are extremely lengthy prison sentences and even life without parole imposed for crimes committed by juveniles. Another recent such trend is to put children convicted of sex offenses on public sex offender registries, in some cases for the rest of their lives, which in turn may be used to limit where they may live or work....

Some progress in resolving these and other fundamental criminal justice problems can be made in the first months of the new administration — and the effort certainly should begin then.  But real change will take far longer.  Criminal justice reform should remain a priority throughout the next administration, with the goal of a more just and humane criminal justice system that better protects the public.

Some recent related posts:

November 13, 2008 in Criminal justice in the Obama Administration | Permalink | Comments (4) | TrackBack

Maryland commission urges abolition of state's death penalty

As detailed in this new article in the Baltimore Sun, a commission appointed by Maryland's governor has now "recommended abolishing capital punishment in Maryland, prompting hope among death penalty opponents that the General Assembly could end the 30-year practice when it convenes in January."  Here is more from the article:

The Maryland Commission on Capital Punishment voted 13-7 to make the recommendation and also found that the death penalty carries the "real possibility" of executing innocents and may be biased against blacks.  The commission's final report provides additional ammunition to O'Malley and other death penalty opponents in their uphill fight to stop state executions.

Previous repeal efforts have narrowly failed despite high-profile campaigns by O'Malley, a Catholic and ardent opponent of capital punishment.   An O'Malley spokesman said tonight that the Democratic governor looks forward to reading the final report, which is due next month.  Tonight's decision "now places a burden on those who would like to defend the system," said Sen. Jamie Raskin, a Montgomery County Democrat and panel member who voted with the majority.

Death penalty proponents took comfort in what they characterized as a close vote, considering that some members of the commission were appointed by an ardent anti-death penalty governor. "Tonight was a night to really figure out where people actually stood," said Baltimore County State's Attorney Scott D. Shellenberger, a panel member who plans to write the minority's opinion to be included in the final commission report. "The vote is a testament to how close this issue is in the state of Maryland."

Despite the panel's recommendation and O'Malley's view, the final decision rests with the General Assembly, where a key Senate panel has repeatedly voted down a death penalty repeal, preventing it from reaching the chamber's floor....

The 23-member commission voted down a proposed amendment to keep the death penalty for people who kill correctional officers or police officers. The panel voiced unanimous or strong support for seven of eight findings it was charged with exploring.  Among these:

  • Racial and geographic disparities exist in how the death penalty is applied
  • Death penalty cases are more costly than non-death penalty cases and take a harder toll on the survivors of murder victims
  • There is no persuasive evidence that risk of execution is a deterrent to crime, and the unavailability of DNA evidence in all cases does not eliminate the "real possibility" of wrongly executing an innocent person

November 13, 2008 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

As more Alaskan votes are counted, Senator Stevens may have more time to focus on sentencing issues

As documented by this Alaska webpage and as further explained in this post at 538, the counting of additional votes in Alaska has led to a new "leader in the clubhouse" in the Senate race between Ted Stevens and Mark Begich.  Though Stevens had been ahead by more than 3000 votes before the latest batch of votes were counted, Begich is now ahead by nearly 1000 votes.  In addition, folks in the know seem to think that Begich is to have an advantage in thousands of votes that still need to be counted.

Though I was genuinely looking forward to the possibility of a felon being a sitting member of the U.S. Senate, it would probably be good for the country (as well as both political parties) not to have to figure out the political fate and future of Stevens had he been reelected.  And, assuming Begich does prevail, Stevens and his team of lawyers can also benefit by now being able to devote all their time and energy to all the complicated legal issues sure to arise in his sentencing and appeals.

Some recent related Stevens posts:

November 13, 2008 in Celebrity sentencings | Permalink | Comments (1) | TrackBack

November 12, 2008

"Obama on Drugs: Should reformers dare to hope?"

The title of this post is the title of this piece by Jacob Solum at Reason. It is mainly focused on marijuana policies, though it ends with this notable realpolitik reminder of administrations past:

The main danger with Obama is that his history of drug use, instead of making him more open to reform, will make him anxious to show he's tough on drugs. Something like that seems to have happened with Bill Clinton, who bragged about ever-escalating drug war budgets and threatened doctors who recommended marijuana to their patients with jail, trampling the First Amendment in his rush to prove his anti-drug bona fides.

"We are going to continue to find ways within the administration to fight legalization and the notion of legalization," a key Clinton drug policy adviser said in defense of this unconstitutional policy, which ultimately was overturned by a federal appeals court. "We're against the message that [California's medical marijuana initiative] sends to children." Who was this zealous drug warrior, eager to forcibly suppress "the notion of legalization" in the name of protecting children? Rahm Emanuel, Obama's chief of staff.

For lots of reasons, I am cautiously optimistic that the coming Obama Administration will have a much, much better approach to criminal justice drug law and policy than did the Clinton Administration.  Nevertheless, as this piece by Jacob Solum highlights, few persons in power inside the beltway in DC has shown significant courage or long-term insight on these political hot-button issue.  That said, I will still dare to hope for real change in the coming years.

November 12, 2008 in Drug Offense Sentencing | Permalink | Comments (2) | TrackBack

Eleventh Circuit's Judge Carnes notes interest in fast-track disparity issue

Today in a thoughtful separate opinion concurring in the denial of en banc review in US v. Vega-Castillo, Judge Carnes of the Eleventh Circuit adds some terrific juice to an important post-Kimbrough federal sentencing issue.  Here are notable snippets from the notable opinion:

I concur in the denial of rehearing en banc but might vote to carry en banc a case that more clearly presents the issue of whether sentencing disparities arising from the location of fast track or early disposition programs may justify a 18 U.S.C. § 3553(a) variance....

The argument in favor of permitting a variance is that defendants in thirteen or so of the federal districts around the country are earning early disposition sentencing departures, up to four levels, that defendants in the other eighty-one districts are not eligible to receive.  See generally U.S.S.G. § 5K3.1. The argument derives its force from the notion that two defendants with essentially the same sentencing profile and post-charge conduct should not be treated differently merely because of the part of the country where they committed their crime.  If a defendant in New Mexico gets a lower sentence because he meets the early disposition criteria, then a materially identical defendant in Florida who meets those same criteria (except for where he is located) ought to get one, too.  Or, at least, the sentencing judge in Florida ought to be allowed to vary downward in calculating the sentence in order to even things up.  That is the argument; that is the issue.  Our Castro and Llanos-Agostadero decisions rejected that argument but then came Kimbrough.  If Kimbrough has not revived the issue, it has at least put a few post-mortem twitches in it that might justify a fresh look en banc....

Because of Vega-Castillo’s criminal record, his failure to offer to waive his right to attack his conviction in a § 2255 proceeding, and his failure to offer to waive his right to appeal his sentence except for the issue at hand, his case does not adequately present the issue of whether a district court may, in an appropriate case, vary downward under § 3553(a) to eliminate disparities caused by the location of fast-track or early disposition programs.

November 12, 2008 in Kimbrough reasonableness case | Permalink | Comments (0) | TrackBack

AEDPA, capital habeas cases and the limits of change

Two events this morning have me thinking about federal habeas review in state capital cases and about the (limited?) potential for a new administration to impact these issue:

1.  The Supreme Court this morning is hearing argument in Bell v. Kelly(SCOTUSwiki description here), which is an important concerning standards of review under AEDPA.  This NACDL amicus brief explains effectively what may be at issue in Bell v. Kelly:

[This] case squarely presents the Court with an opportunity to address the relationship between minimal procedural fairness and the comity and federalism concerns embodied by the Anti-Terrorism and Effective Death Penalty Act (AEDPA).... The way in which the Court decides this case will influence whether state postconviction courts believe they are required to provide a minimally fair process in order for their decisions to be steeled from federal review by the provisions of the AEDPA.

2.  A split panel of the Sixth Circuit today in Davie v. Mitchell issued three separate opinions in the course of affirming an Ohio death sentence on federal habeas review.  At the start of his lengthy dissent, Judge Merritt minces no words about his view of the outcome:

The majority in this case is reading the AEDPA statute unlawfully to suspend the writ of habeas corpus in violation of the Suspension Clause of the United States Constitution, Article I, § 9 (“The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”).  Here, as I shall explain below, the majority is using the AEDPA statute as a license to overrule Miranda v. Arizona and its lineal progeny developed by the Warren-Brennan Court four decades ago to outlaw coerced confessions that abridge the Sixth Amendment right to counsel and the Fifth Amendment right against self-incrimination.

As habeas gurus know, the federal jurisprudence surrounding state capital habeas review has been a mess for decades.  AEPDA was enacted during the Clinton Administration as part of a bipartisan effort to clean up this mess, but arguably AEDPA has only made the mess a lot worse.  Indeed, today's SCOTUS oral argument and Sixth Circuit ruling spotlight the general inability of AEDPA to make this arena of habeas law and policy less messy.

Though surely not a high priority matter for the Obama team, I like to imagine that a new administration might eventually consider some changed approaches to old habeas issue.  But, in the wake of the AEDPA experience, I am not optimistic about the potential for real change.  In other words, I fear that, even if a new administration is willing and eager to "improve" AEDPA and the messy jurisprudence that surrounds capital habeas review, it may be very difficult to do significantly better than the status quo (at least absent a serious commitment to reconstructing radically federal involvement in state capital cases). 

November 12, 2008 | Permalink | Comments (1) | TrackBack

Kentucky governments fighting in court over incarceration costs

This local article from Kentucky, headlined "Counties sue state over state inmate costs," provides a good example of how our prison economy and tough economic times can lead to some unusual court battles.  Here are some details:

The Kentucky County Judge/Executives Association and 110 fiscal courts filed the suit Friday in Franklin Circuit Court.  The suit names the Commonwealth of Kentucky, the Justice Cabinet, the Finance Administration and the General Assembly as defendants.  It seeks to force the state to pay for the time prisoners are housed in jails before they are sentenced.  Presently, the state picks up the tab for state felons only from the time of sentencing.

“It’s been discussed for years and years,” said Laurel County Judge/Executive Lawrence Kuhl. “It’s not a thing we really wanted to do, it's a thing we felt we had to do.”

Kentucky law requires judges to give prisoners credit against their total sentences for the time they served while awaiting trial and adjudication.  But while those charged with – and convicted of – felony crimes are state prisoners, the county bears all the costs of housing them before conviction....

Many counties are subsidizing their jail budgets by 30 to 40 percent.  Last year, Laurel County diverted $1.5 million from its general fund to the county jail – and cut every other department’s budget, including the Sheriff’s Department.

Some related posts on prison economy realities:

November 12, 2008 in Scope of Imprisonment | Permalink | Comments (2) | TrackBack

Federal sentencing through history: "Theives Treated Tenderly."

An insightful reader sent me this link to a fascinating little New York Times story published in December 1886.  The quote above is the headline from this story published 122 years ago; here is the first sentence and some later snippets from this reporting of 19th-century federal sentencing news that was fit to print:

The unusual leniency with which the case of H. Robertson Jr. was handled by Judge Benedlot in the United States Circuit Court a few days ago has brought to the attention of lawyers and others who have business with the Federal authorities the extremely light sentences imposed upon persons convicted of violating the postal laws....

It will be seen that in no case has the sentence been for a longer term than one year.  In speaking of the tenderness with which Post Office cases were handled, Gen. Foster, the Assistant United States DistrictAttorney, said that he could not consider himself to blame as he had in nearly all the cases secured convictions.  He could not regulate the sentences because that rested entirely with the Judges.

November 12, 2008 in Detailed sentencing data | Permalink | Comments (2) | TrackBack

November 11, 2008

Media coverage of Hayes oral argument is not gun shy

I complained in this post yesterday that the Second Amendment got absolutely no love or attention from the Supreme Court when it heard oral argument in the Hayes case.  Specifically, neither the Second Amendment nor the decision in Heller was even mentioned once during the Hayes oral argument.  For this reason and others, I was quite intrigued to discover this kind of coverage of the Hayes oral argument today in the Los Angeles Times.  Note this heading and subheading for the report on Hayes

Domestic violence abusers could get gun rights -- The Supreme Court will decide whether people convicted of misdemeanor assault against their spouses or partners should have their 2nd Amendment rights restored because of a flaw in federal law.

Consider also the story's lead and these additional snippets:

Thousands convicted of a misdemeanor for threatening or assaulting a spouse or girlfriend could once again own guns because of a flaw in the federal law.  That prospect grew more likely Monday after the Supreme Court gave a skeptical hearing to a government lawyer who argued that a crime of domestic violence should result in a loss of gun rights....

But during Monday's argument, Scalia said possessing a gun was "lawful conduct," and a wife-beating charge lodged against a West Virginia man was "not that serious an offense."...

The Brady Center to Prevent Gun Violence said a ruling for Hayes "could re-arm thousands of convicted domestic violence abusers."  About 14% "of all police officer deaths occur during a response to domestic violence calls," the group said.  On the other side, the Second Amendment Foundation said the "fundamental right" to own a gun should not be taken away over a misdemeanor.

This kind of media coverage reassures me that Hayes is a Second Amendment sleeper case even if the Justice may be eager to let a sleeping Heller dog lie.

Some recent related Second Amendment posts:

November 11, 2008 in Second Amendment issues | Permalink | Comments (7) | TrackBack

Interesting international sentencing controversy in middle east

Anyone troubled by the nature and state of sentencing law and policy in the United States can perhaps take some comfort that other countries also have their share of dysfunctional sentencing experiences.  The latest example comes from this notable AP story reporting on recent activity in the Middle East:

Demonstrators in Cairo demanded Tuesday that Saudi Arabia release an Egyptian doctor sentenced to 15 years in prison and 1,500 lashes after he was convicted of malpractice —reportedly after treating a Saudi princess....

Raouf Amin el-Arabi, a doctor who has been serving the Saudi royal family for about 20 years, was convicted last year of giving a patient the wrong medication.  Egyptian newspapers reported that he was accused of driving a Saudi princess "to addiction."

He initially was sentenced to seven years in prison and 700 lashes, but when he appealed two months ago, the judge not only upheld the conviction, but more than doubled the penalty to 15 years in prison and 1,500 lashes.

Family members, friends and colleagues gathered at the headquarters of Egypt's doctors' union in downtown Cairo and urged Saudi King Abdullah to pardon el-Arabi.... "1,500 lashes is unprecedented in the history of Islam," read one banners carried by protesters.....

El-Arabi is in a jail in the Red Sea port city of Jeddah and is believed to have received at least one of his weekly installments of 70 lashes so far.

November 11, 2008 in Sentencing around the world | Permalink | Comments (2) | TrackBack

Why federal sentencing reformers must focus on the USSC and lower courts

This new article from Tony Mauro, along with the Supreme Court's refusal yesterday to consider a pair of victim impact capital cases (basics here), highlights one of many reasons that would-be sentencing reformers should ignore post-election buzz about possible Supreme Court transitions.  Here is a snippet from the piece:

Conventional wisdom, accelerated by Barack Obama's victory Nov. 4, has [Justices] Ginsburg, Stevens and Justice David Souter, all on the moderate-liberal wing of the Court, heading for the exits during Obama's first term.

As the theory goes, all three justices would be happier being replaced under Democrat Obama than they would have been under Republicans John McCain or, for the last eight years, President George W. Bush.  Names of possible replacements for the three are bandied about as often as candidates for Obama's Cabinet.

But as Ginsburg's broadly dropped hints suggest, justices don't always follow political timetables for their departures. They often remain as long as they feel their health and their work product are still good.  The political persuasion of the president, while sometimes a factor justices consider in timing their departures, rarely is decisive.

Though I think it likely that President-Elect Obama will get to replace at least Justice Stevens in the not-too-distant future, it is almost impossible to imagine a replacement that will be as pro-defendant as Stevens has become on sentencing issues.  Thus, for folks interested in sentencing issues, any likely SCOTUS transitions may actually move the Court slightly to the right on sentencing issues.

These dynamics are reversed, however, when it comes to the US Sentencing Commission and lower federal courts.  Though the USSC has been a very moderate and responsible institution over the last few years, the appointment of new Sentencing Commissioners could potentially move the USSC to the left and could make the USSC a more vocal advocate for systemic reforms to the entire federal sentencing structure. 

Similarly, though I do not expect President-Elect Obama to look for judicial nominees who will ensure the "mass freeing of criminal defendants" as some have predicted, I do expect the average Obama nominate to be somewhat more defendant-friendly than the average Bush nominee (and even more defendant-friendly than the average Clinton nominee).  Especially because federal district and circuit courts are going to define the doctrines and realities of federal sentencing as long as Booker is the law of the land, federal sentencing reformers should give particular attention to the names and backgrounds of those persons who are discussed for lower federal court positions in the weeks and months ahead.

Some related posts:

November 11, 2008 in Who Sentences | Permalink | Comments (1) | TrackBack

New and notable website from LDF

I am pleased to report that the NAACP Legal Defense Fund has this impressive new website, "The Defenders Online."  Here is how the website describes itself: 

For more than 60 years, the NAACP Legal Defense and Educational Fund (LDF) has fought to make the promise implicit in the hallowed words of the Constitution a reality and help America reach its highest potential.

Now, LDF is expanding its responsibility and challenge as the nation’s premier civil rights law firm through TheDefendersOnline.com, a new forum for the discussion of those ideas that have always been at the heart of America’s civil rights struggle: race, justice, equality and democracy.

LDF plans to be a dynamic force in the national discourse about current events, examining key issues in the United States and around the world with contributions from a stellar and diverse mix of attorneys, leaders, authors, activists, educators, novelists, students, poets, journalists, elected officials, bloggers and others who have compelling insights about the progress that inspires and the problems that challenge us today.

The section of the website I will be checking regularly is under this tab for Criminal Justice, though I have also noted a lot of cool content under This Week in History.

November 11, 2008 in Recommended reading | Permalink | Comments (0) | TrackBack

An example of homicide victim's family asking for sentencing leniency

The Supreme Court's disinclination to consider a pair of victim impact capital cases (basics here) has already prompted some commentors to complain about victims having a role in the criminal justice system.  But this local story from Utah provides yet another example of how victims can often be a voice for sentencing leniency even when the defendant is facing homicide charges:

Driving while talking on a cell phone is a dangerous mix for one mom. "Oh it breaks my heart,” said Linda Mulkey. “It’s such a dangerous habit."

Mulkey knows first hand about the consequences of a distracted driver.  She lost her only daughter in a car accident. 18 months ago, Lauren Mulkey just graduated from East High.  She died when Theodore Jorgensen ran a red light while fidgeting with his cell phone. "You don't get over losing a child,” said Mulkey. “You just learn to deal with the pain. It hurts everyday. My whole future is wiped out."

But Monday in court, Mulkey had the courage to forgive Jorgensen.  The 20-year old pleaded guilty to negligent homicide and faced sentencing.  But Mulkey asked the judge that she didn’t want him serving at prison time.  “It just didn’t make any sense,” she said.  Instead, she asked that Jorgensen be required to do community service.

In court, Jorgensen apologized to Mulkey. He turned to face her and said "I'm sorry for the pain I've caused."

“It took me a long time to reach this point,” she said. “But the more I saw him in court I realized he was a young scared man who had loving parents and I didn’t see any point in him sitting in jail.”

The judge agreed placing Jorgensen on probation and ordering him to do 500 hours of community service. “I’m hoping we can make joint appearances at schools,” she said. “His story and my story would make powerful messages to students.”

Some related posts:

November 11, 2008 in Victims' Rights At Sentencing | Permalink | Comments (4) | TrackBack

November 10, 2008

President-elect Obama already getting pressure to pardon the border agents

Regular readers may recall all the controversies stirred up the prosecution and sentencing of former border agents Ignacio Ramos and Jose Compean.  As detailed here, there has been a bipartisan call for their sentences to be commuted, and I am hoping (though not optimistic) that Ramos and Compean might get some sentencing justice from President George Bush as he packs up his desk at the White House.

Interestingly, as detailed in this local article, even 10 weeks before he can lay claim to the presidential clemency power, President-elect Barack Obama is getting public pressure to help out the border agents:

U.S. Rep. Tom Tancredo is asking President-Elect Barack Obama to pardon two border patrol agents who were convicted in the 2005 shooting an unarmed drug smuggler and trying to cover up the crime.

Ignacio Ramos and Jose Compean were arrested after the drug smuggler, Osvaldo Aldrete Davila, filed a complaint against them after the shooting in Fabens, Texas. Testimony revealed Davila was running away when he was shot in the buttocks. Davila was granted immunity from prosecution in exchange for agreeing to return to the United States to testify against the two Border Patrol agents.

In Monday's letter to the president-elect, Tancredo said, "These are the kind of men whose government failed and destroyed them -- all while they were serving a cause greater than themselves. These men deserve justice. I, and many other Members of Congress, have repeatedly called upon President Bush to exercise his power to pardon -- but he has not done so."...

Tancredo's letter to the president-elect added, "I respectfully urge you to use your power as President to take the immediate, appropriate and long overdue step of freeing them in your first two weeks in office, and see to it that agents Ramos and Compean spend President’s Day at home with their families -- instead of sitting in solitary confinement in a federal prison because they had the temerity to do their job."

Some prior posts about the Border Agents case:

November 10, 2008 in Clemency and Pardons | Permalink | Comments (10) | TrackBack

Is anyone (other than me) discussing the apparent insignificance of Heller?

I noticed over at The Volokh Conspiracy reports on a lecture and a symposium focused on the Heller Second Amendment case.  It seems that both events take as a given that Heller is an important decision.  But activity today at the Supreme Court has me wonderign again if the Heller decision means anything consequential at all. 

As previously noted here, the Justices heard oral argument today in US v. Hayes, which concerns the interpretation and reach of a federal gun law — 18 U.S.C. § 922(g)(9) — which criminalizes any and all gun possession by anyone previous convicted of the wrong kind of misdemeanor.  If Heller really articulated and safeguarded some kind of meaningful constitutional right under the Second Amendment, at least some of the argument in Hayes should have been about the scope of constitutional gun rights and/or whether the doctrine of constitutional doubt should limit the application of the gun possession crime set forth in § 922(g)(9).  However, a quick scan of the oral argument transcript in Hayes reveals that neither Heller nor the Second Amendment was mentioned at all.

As regular readers also know from this recent post, we have not yet seen one single lower federal court ruling that gives any meaning or force to the Second Amendment rights purportedly championed in Heller.  Indeed, in light of the failure of the Justices today and lower courts to even consider the import or impact of the Second Amendment in various settings, I am inclined to ask a legal variation on a classic philosophical riddle: "If a constitutional right falls in the courts and no judge pays it any attention, does the right make any difference?"

Some recent related Second Amendment posts:

November 10, 2008 in Second Amendment issues | Permalink | Comments (7) | TrackBack

Justices talk about victim impact evidence in cert. denial

As detailed in this SCOTUSblog post, Justices Stevens and Breyer commented on the Supreme Court's decision to deny cert in an interesting victim-impact case.  Here are the basics from the SCOTUSblog report:

The Supreme Court refused on Monday, over the protests of three Justices, to provide new guidance on the kinds of “victim impact” evidence that may be put before jurors to try to convince them to impose a death sentence. Specifically, the Court turned down two appeals seeking to challenge the use of music and video portrayals that may be highly emotional. It would have taken the votes of four Justices to grant review; three said the Court should have examined anew that kind of evidence....

“In the years since Payne was decided,” Stevens wrote Monday, “this Court has left state and federal courts unguided in their efforts to police the hazy boundaries between permissible victim impact evidence and its impermissible, ‘unduly prejudicial’ forms….Having decided to tolerate the introduction of evidence that puts a heavy thumb on the prosecutor’s side of the scale in death cases, the Court has a duty to consider what reasonable limits should be placed on its use.”

Justice Stephen G. Breyer said in dissent from the denial: “I understand the difficulty of drawing a line between what is, and is not, constitutionally admissible in this area. But examples can help elucidate constitutional guidelines.” The Court, he added, should have granted review of the two new cases “in an effort to do so.”

Justice David H. Souter said he, too, would have heard one of the cases; he did not write separately, however.... The cases denied review were Kelly v. California (07-11073) and Zamudio v. California (07-11425). While Justices Breyer and Stevens were in favor of hearing both, Justice Souter indicated he would grant only the Kelly petition.

Thanks to the folks at SCOTUSblog, Justice Stevens’ statement respecting the denial is available here, and Justice Breyer’s dissent from the denial is available here.

November 10, 2008 | Permalink | Comments (18) | TrackBack

How a new administration is likely to impact federal sentencing practice

It likely will be some time before anyone can predict how an Obama Administration might seek to alter federal sentencing law and policy.  (The naming of a new Attorney General and other key DOJ appointments may provide some signals, but the federal sentencing system is probably a low priority matter compared to other key crime and justice concerns.)  However, if past is prologue, we can already start to predict ways in which the incoming administration might impact federal sentencing practice.

During the Clinton Administration, as Frank Bowman and Michael Heise effectively document in their Quiet Rebellion articles (abstract here), there was a discernible tendency for front-line sentencing actors to exercise their discretion in favor of leniency in federal drug cases.  During the Bush Administration, according to data from the US Sentencing Commission, there was a discernible tendency for front-line sentencing actors to recommend and impose within-guideline sentences even more frequently in nearly all types of cases.  Though these ground-level sentencing trends partially reflected formal legal and policy developments, they also clearly reflected informal institutional and attitudinal realities that necessarily echo through the discretionary judgments made by thousands of federal prosecutors and judges dealing with tens of thousands of federal sentencing cases every year.

In other words, the institutional structures and attitudinal environment for prosecutors and judges established by a new administration will impact federal sentencing practice in ways that necessarily transcend (and may be more profound) than any formal changes to federal sentencing law and policy.  And, especially now that Booker and its progeny have further enhanced the discretionary power and responsibilities of front-line sentencing actors, I expect that we may start to see notable changes in the federal sentencing outcomes even before any tangible changes in federal sentencing law and policy.

November 10, 2008 in Who Sentences | Permalink | Comments (7) | TrackBack

Debating alternatives north of the border

As detailed in these linked stories, two very different cases in Canada are prompting public and court debates over two notable sentencing alternatives:

November 10, 2008 in Criminal Sentences Alternatives | Permalink | Comments (0) | TrackBack

November 9, 2008

Monday madness at SCOTUS: ACCA, confrontation and a Second Amendment sleeper

As detailed in this helpful SCOTUSblog post (which includes links to more materials), the Supreme Court on Monday has its biggest criminal justice argument day since ... I don't know when.  Here are the particulars:

On Monday, the Court will release orders from the Justices’ private conference last Friday. We will provide a link to the orders list as soon as it is available. Following the release of orders, the Court will hear argument in:

  • Chambers v. United States (06-11206), on whether failure to report to prison is a “violent felony” under the Armed Career Criminals Act.
  • United States v. Hayes (07-608), on whether federal gun laws require a domestic relationship between an attacker and victim to qualify as a misdemeanor crime of “domestic violence.”
  • Melendez-Diaz v. Massachusetts (07-591), on whether the Confrontation Clause gives criminal defendants a right to cross-examine forensic analysts who prepare laboratory reports for use in their prosecution.

Because the Confrontation Clause case is the only one which directly raises a constitutional issue, I suspect it will get most of the media and academic attention.  But Chambers is a case which should be of great interest to federal sentencing practitioners, and Hayes is arguably the biggest sleeper case of the term because of a set of Second Amendment issues lurking deep inside a seemingly minor statutory interpretation case.

As detailed in this post, I have had my eye on Hayes as a potentially important Second Amendment case even since cert was granted back in March.  Of course, the subsequent Heller ruling finding an individual right to firearms in the home for self-protection added to the potential importance of Hayes

Interestingly, the merits and amicus briefs submitted in Hayes mostly dodge the Second Amendment, but that does not mean that the Justices will not bring up Heller-related issues during oral argument.  In other words, I am already looking forward to reading the Hayes oral argument transcript. 

Some recent related Second Amendment posts:

November 9, 2008 in Second Amendment issues | Permalink | Comments (3) | TrackBack

A challenge to severe Oregon sex offense sentences worth watching

Late last year, I blogged here and here about a fascinating and sad Oregon case involving a long mandatory prison term imposed on an adult female counselor convicted of unlawful heavy petting of her underage ward.  A helpful reader sent me this local news report on the oral argument in this case that took place last week before the Oregon Supreme Court.  Here are some details:

An attorney for a former employee of the Hillsboro Boy's and Girl's Club told the Oregon Supreme Court Tuesday that six-plus years in prison for touching her clothed breasts to the back of a 12-year-old boy's head amounted to cruel and unusual punishment.

A Washington County jury found Veronica Rodriguez, now 28, guilty of sex abuse in the first degree after Hillsboro investigators saw her breasts touch the boy's head while she ran her fingers through his hair at the club in 2005.

At sentencing, now-retired Judge Nancy Campbell said the circumstances only merited one year and four months in prison instead of the prescribed sentence of six years and three months required by 1994's voter-approved Measure 11.

Rodriguez and attorney Peter Garlan concede that Measure 11 is constitutional, but claim its application against Rodriguez violates Article 1, Section 16 — the proportionality clause of the Oregon Constitution.

Rodriguez's case is combined with another appeal from Linn County, where 36-year-old Darryl Buck was convicted of first-degree sex abuse for touching a 13-year-old girl's clothed buttocks several times during a fishing trip.  Garlan said the girl overreacted to Buck's using his hands to help her remain upright, and her "histrionics" had an effect on the jury.The judge agreed, and handed down a 17-month sentence, appropriate for the action, Garlan said.

The state's Court of Appeals rejected both judge's decisions, and said both defendants should serve another five years....

Department of Justice spokesperson Jake Weigler said Wednesday voters passed the measure to eliminate judges' discretion in a range of crimes. Clearly, Rodriguez and Buck fell within that range, he said. If Measure 11 is to be changed, it should be by the will of the voters or the legislature, he said.... 

Justice Robert D. Durham asked both attorneys if it was the role of the court to make an evaluation of offenders, when the law only mentions "the offense."  Should the court treat each offense as if it were a videotape of the act that turns on when the abuse begins and turns off when it ends? "Does that imply there should be no investigation into the actor?" Durham asked. And did that also imply there should be no consideration of whether a defendant lied on the stand, or lied to the police?

Though this article does not make clear whether the defendants in this case have also presented a federal constitutional challenges as well as the state constitutional challenge.  If they have and if the defendants do not get any relief from the state supreme court, these cases could possibly present interesting and important vehicles for raising an array of constitutional issues in the Supreme Court. 

Some related posts:

UPDATE:  I found the defendant's brief to the Oregon Supreme Court at this link.  It is hard to tell from a quick scan of the brief whether a formal Eighth Amendment claim is pressed by the brief.  But one aspect of the brief that jumped out was this notable paragraph under the argument summary:

Victim’s Position at Sentencing.  Several statutory and constitutional enactments over the past several decades guarantee the victim a voice at sentencing proceedings.  The victim’s mother accepts defendant as a member of the family and supported defendant throughout the course of the prosecution, through and including the sentencing hearing.

This paragraphs confirms my long-held belief that giving all victims a more formal voice and role at sentencing could and would often prove to be catalyst for more sensible sentencing outcomes and reforms.  In extreme cases, extreme victims will sometimes be eager for extreme sentences.  But I think in most cases, many victims are often eager for moderate sentences.

November 9, 2008 in Examples of "over-punishment" | Permalink | Comments (3) | TrackBack

"Citing Workload, Public Lawyers Reject New Cases"

The title of this post is the title of this front-page article appearing in today's New York Times.  Here is how it begins:

Public defenders’ offices in at least seven states are refusing to take on new cases or have sued to limit them, citing overwhelming workloads that they say undermine the constitutional right to counsel for the poor.

Public defenders are notoriously overworked, and their turnover is high and their pay low. But now, in the most open revolt by public defenders in memory, many of the government-appointed lawyers say that state budget cuts and rising caseloads have pushed them to the breaking point.

In September, a Florida judge ruled that the public defenders’ office in Miami-Dade County could refuse to represent many of those arrested on lesser felony charges so its lawyers could provide a better defense for other clients.  Over the last three years, the average number of felony cases handled by each lawyer in a year has climbed to close to 500, from 367, officials said, and caseloads for lawyers assigned to misdemeanor cases have risen to 2,225, from 1,380.

“Right now a lot of public defenders are starting to stand up and say, ‘No more: We can’t ethically handle this many cases,’” said David J. Carroll, director of research for the National Legal Aid and Defender Association.

The reality of under-funded and over-worked public defenders has been a persistent problem in all eras and at all levels of government.  I am pleased that the New York Times is bringing renewed attention to this issue when the mantra of change is still fresh in the public consciousness.

Of course, defense attorneys are hardly the only public lawyers who are under-funded and over-worked.  Compared to their private practice peers, many state and federal prosecutors and many state and federal civil lawyers and many state and federal judges also generally have too much to do and often are insufficiently compensated for their public service. 

I am hopeful (though not especially optimistic) that a new federal executive branch headed by a bunch of lawyers with a long commitment to public service might have a positive impact on the practical challenges surrounding public service lawyering.  But the structural and political realities that produce the kinds of problems highlighted by the Times article are not easily altered.

November 9, 2008 in Who Sentences | Permalink | Comments (10) | TrackBack