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July 12, 2009

Constitutional rejection of severe mandatory minimum sentence getting attention for circuit nominee

This effective new article in today's Atlanta Journal-Constitution , which is headlined "Appeals nominee set sentence rule aside," reviews a notable ruling in a federal sex offense case by one of President Obama's latest circuit court nominees. Here are a few details:

Kelly Brenton Farley had it all planned out: fly into Atlanta for business, hook up with a woman he met on the Internet and have sex with her and her 10-year-old daughter.  But Farley never got the chance. When his plane landed in Atlanta, he was ensnared in an undercover FBI sting, arrested and later convicted at trial.

For crossing state lines to engage in sex with a child under 12, Farley faced a 30-year minimum mandatory prison sentence set by Congress.  But U.S. District Judge Beverly Martin — President Barack Obama’s nominee for the federal appeals court in Atlanta — declined to impose it.

In a ruling federal prosecutors call “unprecedented,” Martin found unconstitutional the minimum mandatory term. In an order, she said the punishment was disproportionately severe when compared to penalties for similar and more aggravated crimes.... The ruling has already drawn sharp criticism by top House Republican lawmakers who say Martin ignored Congress’ authority to decide the appropriate punishment for those who try to sexually abuse a child.  Nine members are asking the 11th U.S. Circuit Court of Appeals — where Martin would sit if she is confirmed — to overturn her decision....

Last week, Rep. Lamar Smith (R-Texas), ranking minority member of the House Judiciary Committee, said Martin improperly lopped 10 years off Congress’ mandatory minimum sentence for pedophiles. “If we’re serious about protecting children from sexual predators, we must make sure that our laws are effectively enforced and that judges do not stray from Congress’ intent,” he said....

Last month, when Obama sought to elevate Martin to the appeals court, he called her a first-rate jurist with “unflagging integrity and evenhandedness.”  The 12-member 11th Circuit, hears appeals out of Georgia, Alabama and Florida.  Martin, 53, is a former U.S. attorney in Macon. She was put on the U.S. District Court in Atlanta by President Bill Clinton in 2000.

Former state Attorney General Mike Bowers, a Republican who recommends judicial appointments to Gov. Sonny Perdue, called Martin a straight shooter who “really believes in the rule of law and doing what’s right.” No one should give her a hard time at her confirmation hearing, Bowers said. “She’s a gift.”  One of Georgia’s two GOP senators, Saxby Chambliss, gave Martin a ringing endorsement, saying Obama “could not have chosen a more qualified individual” for the 11th Circuit.

Atlanta criminal defense attorney Don Samuel, an expert on federal sentencing law, noted that Martin did not declare the 30-year minimum mandatory sentence unconstitutional in every case — only as it applied to Farley. “[It] reflects her thoughtful consideration of whether the Constitution permits Congress to set a minimum sentence that bars a judge from considering any facts about the case that might make a sentence unreasonable,” he said.

In her Sept. 2, 2008, order, Martin said she had “tremendous respect and deference” for Congress. But to simply assume a statute is constitutional without substantive review would violate the principle of separation of powers, she said.  At Farley’s sentencing hearing, Martin sent him away for 19 years and seven months in prison. “I have never intended to imply that I don’t consider this a serious offense,” she told him.

During eight years as a federal judge, Martin said, the only statute she had struck down was a local sign ordinance.  She also said that when she set out to decide the constitutional challenge to the mandatory prison sentence, she intended to uphold it. But when reviewing other statutes imposing penalties for similar or more severe conduct, “I just couldn’t form the words to say that it wasn’t … disproportionately harsh,” she said. Martin noted that crossing state lines with the intent to kill someone carries a maximum penalty of 10 years in prison; if the victim is physically harmed, the maximum is 20 years.

Farley, a father of six from McKinney, Texas, once earned $140,000 as a regional vice president for a financial services company. On Oct. 3, 2006, he entered a Yahoo chat room called “Fetish Number 14,” devoted to the topic of incest. In the chat, Farley met “Stephanie,” who said she was a nurse and a single mother with a 10-year-old daughter named Sydney. But Stephanie was actually Joanne Southerland, a Clayton County detective assigned to the FBI task force....

Congress requires the same minimum mandatory 30-year term for someone who actually engages in sex with a child, Martin wrote.  She noted that no harm was suffered in Farley’s case, “because the child was a creation of law enforcement and no real child exists.”... “While Mr. Farley’s crime is deplorable,”  Martin concluded, “it is far less grave than crimes committed by perpetual offenders that remain a demonstrated threat to the public, or crimes that result in loss of or emotional devastation to a person’s life.”

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If you solicit an undercover agent on hidden video to kill your wife, should you get the sentence for her physical murder? There are many constructive elements in the lawyer made up law. This is just another good example of over-regulation and fictional violations, to generate lawyer jobs.

The lawyer should be excluded from all benches, all legislative seats, and all responsible policy positions in the Executive. The self-dealing incompetent and rent seeking land pirate is a disgrace.

Posted by: Supremacy Claus | Jul 12, 2009 10:34:21 AM

Intent is mind reading. Not even the church of the Middles Ages claimed man could do that. It believed that God would judge the intent of sinners after reaching heaven. Only the lawyer believes in intent, borrowed from Scholasticism, but which is not a provable fact in nature. Why didn't the defendant just argue, he wanted to play cards with them, and the chats were false pretexts to play cards upon arrival.

Meanwhile, the lawyer allows 23 million crime victimizations a year in the physical world.

Posted by: Supremacy Claus | Jul 12, 2009 12:58:51 PM

I admit that this approach bothers me. I can say that I agree with the judge's logic. But I also think the constitutional justification for it is weak. It's really a policy decision best left to Congress. I don't know of anything in the Constitution that requires the law to be rational or logical. Is an irrational law by definition cruel and unusual? I have a difficult time swallowing that. I don't think it's the court role to try and make the law sensical.

Posted by: Daniel | Jul 12, 2009 6:15:20 PM

Daniel, how about the requirement that sentences be reasonable?

Posted by: Tom McGee | Jul 12, 2009 8:27:06 PM

The word, reason, or reasonable, is also unlawful, because it means, in accordance with the New Testament.

It is time to just kick out the lawyer from the criminal justice. The lawyer provides only law breaking, incompetence, oppression of productive people, and immunity to the parasitic criminal. Enough.

Posted by: Supremacy Claus | Jul 12, 2009 9:16:13 PM

I think the odds are 90% for reversal -- if the Obama DOJ authorizes an appeal.

If a court can adopt this method of analysis, Congress should just forget about trying to establish sentences. "Disproportion" is a sufficiently subjective concept that any willful judge can mold it as he or she chooses.

If a judge thinks that a statutory MAXIMUM is "disproportionately" lenient for a particularly grotesque crime, should he, under this logic, get to do what he wants too?

Good grief.

Posted by: Bill Otis | Jul 12, 2009 9:50:57 PM

Although I think the sentence is ridiculously harsh, I have to agree with Bill Otis that the judge's reasoning would almost certainly be reversed on appeal.

Posted by: Marc Shepherd | Jul 13, 2009 9:57:31 AM


No. I don't think there is an Constitutional requirement that the law be reasonable either.

This is a difficult area because "cruel and unusual" are in the Constitution and as such those words must have real meaning and weight. I am just not convinced that "reasonableness" or "logic" is the proper standard by which those words should be judged.

What I am trying to say is that I think that punishment *should* fit the crime. But I don't think that as a Constitutional matter punishment *must* fit the crime. That's a decision for Congress to make and not the courts.

How much of a disjunction between punishment and crime does the constitution permit before we get to cruel and unusual. There's the tricky part. I'm not sure there is an objective answer to that question. I don't think we pass that threshold in the above case.

Posted by: Daniel | Jul 13, 2009 1:53:16 PM

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