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November 26, 2009

What SCOTUS sentencing cases are you thankful for?

On this day for giving thanks, I thought my sole post could provide a forum for folks to say thanks to the Supreme Court for their favorite sentencing cases.  I am hopeful — but not completely optimistic — that by next Thanksgiving I will be giving thanks to the Justices for breathing new life into the Eighth Amendment in non-capital cases via thoughtful rulings in this Term's juve LWOP cases Graham and Sullivan.  But I can already give thanks for SCOTUS's modern sentencing jurisprudence, which has given me lots to write about in this space and elsewhere.  Of course, I am always most thankful for Blakely , in part because it has helped me have a whole new vision of modern constitutional criminal procedure.  But, as a federal sentencing nut, I must also give a special thankful shout-out to Booker and its progeny (especially Gall and Kimbrough).

In addition, especially since I taught a Second Amendment seminar this past term for the first time, I have to say thanks for the recent Heller ruling even though it is not really a pure sentencing case.  I have joyfully discovered from teaching this seminar — and also from reading lower court opinions limiting Heller's reach and briefs urging the Second Amendment's broad application to the states — that Heller can and should prompt a host of new and dynamic second (and third and fourth) thoughts about all sorts of interesting and important constitutional questions.

November 26, 2009 at 12:30 PM | Permalink


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Although a devout atheist, I offer a prayer of thanks.

Thank Thee, Lord, for our Supreme Court, and the bounties it has provided the lawyer profession. We beseech you to protect and preserve it, just as it is. Preserve it from illness, physical discomfort, pangs of conscience, pointless internal contumaciousness, open criticism by legislators, street justice, criminal victimization in the streets of Washington by one of the vicious predators it loosed, or any other form of justice or accountability.

Strengthen it, Lord. Harden its heart to the cries of 23 million crime victims this year. They produce no lawyer fees. Let their cries and rending of clothing go for naught. For these mean nothing, they produce no lawyer fees.

Instead, sharpen the Court's wits in their search for the tiniest of loopholes, and the proper pretext among the infinite number of lawyer invented rules to set free, immunize, and embolden the client of the lawyers on both sides, the criminal. For the criminal is the source of income of prosecutor, defense lawyer, and judge. Let this irremediable conflict of interest never be seen by the public. Yes, let the Court enhance its reputation for realism by using unduplicated research showing, the criminals are really handicapped people. They do not deserve incapacitation, but accommodation, perhaps, handicapped parking tags and disability payments. And Realism is a synonym for the imposition of personal preference even in the face of inconvenient written law, stemming from the same Free Law Movement that spawned the massive lawbreaking of the Nazi Judiciary in its genocidal, but confiscatory scheme against the Jews, your People, Lord.

Lastly, Lord, do not allow the terrorists to think of any more massive attack on our shore after their favorable, preferential treatment by our Supreme Court. Make their minds go blank. That attack may give patriots a flimsy excuse to falsely attack our blessed Court, and the source of $100's of billions in lawyer fees a year.

Posted by: Supremacy Claus | Nov 26, 2009 3:59:15 PM

Gregg v. Georgia, 428 U.S. 153 (1976).

Posted by: Bill Otis | Nov 26, 2009 4:22:11 PM

"thoughtful rulings in this Term's juve LWOP cases Graham and Sullivan."

Translation: rulings that will put society at risk . . . .

Let's hope the Supreme Court doesn't follow the "be nice to criminals" siren song.

Posted by: federalist | Nov 26, 2009 4:47:33 PM

"[T]he words of the [Eighth] Amendment are not precise, and...their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."

Trop v. Dulles, 356 U.S. 86, 100-01 (1958)

Posted by: JC | Nov 26, 2009 8:27:39 PM

federalist, the Framers put the Eighth Amendment in the Constitution precisely because they (rightly) feared that voices like yours would always be singing a "be cruel to criminals" siren song and would often urge a lack of thoughtfulness when society decides how to treat disliked or feared members. But unless and until you are prepared to embrace a totalitarian-type criminal justice system, you too would be eager to see a thoughtful articulation of the scope and meaning of the Eighth Amendment. But perhaps not -- perhaps giving even a moment's thought to those who commit crimes is more than you wish to give. I guess that means I should be thankful that you are not a Supreme Court Justice.

Posted by: Doug B. | Nov 26, 2009 8:49:13 PM

I think that my comments here about Graham and Sullivan have shown a great deal of thoughtfulness. I also think about those innocent members of society that will be harmed because of what people like you think is stylish.

And spare me the overwrought rhetoric--I no more support a totalitarian criminal justice system than I supported Barack Obama for president.

Posted by: federalist | Nov 26, 2009 9:15:07 PM

We have a totalitarian system now. It is run by the unelected, rent seeking lawyer, making 99% of the government policy decisions, mostly looking for themselves and no one else. It is enforced at the point of a gun. These lawyers send out 1000's of their clients to kill 17,000 people a year, and to injure 5 million others, maintaining as much fear as under any totalitarian regime.

Prof. Berman is buying the propaganda peddled to our hapless students.

Posted by: Supremacy Claus | Nov 26, 2009 10:59:20 PM

That prayer was hilarious SC.

As for me, no doubt Crawford v Washington. I still do not think that opinion is 100% secure but I believe that ability to confront a witness is a touchstone of our legal system.

Posted by: Daniel | Nov 26, 2009 11:37:42 PM

Miranda v. Arizona (1966) because it helped prevent the third degree and torture for confessions.

Gideon v. Wainwright (1963) because it helped ensure the protections of the Constitution just because defendant's were ignorant of their rights.

Both of these cases helped professionalize investigations and prosecutions. Prayers like S.C.'s are reactionary in the sense they want to discount the rights these cases protect (usually in the name of victims but we don't know that victims themselves would want to do away with these rights even though they could be biased in that direction).

Posted by: George | Nov 27, 2009 11:49:14 AM

Doug said it much better...and with far fewer words. Nonetheless:

Cmon, federalist. Society puts itself at risk each time it orders a Big Mac, another round of drinks or a carton of Marlboro Lights.

Society exposes itself to all sorts of risk when it climbs out of bed in the morning, slides behind the steering wheel or scurries up a ladder to hang the Christmas lights...and so on.

Life is risk...no matter how tough on crime opportunistic politicians and other fear mongers allow themselves to get.

Fail-safe incarceration of the sort you seem to be suggesting would mean never releasing any of America's 2 million-plus inmates (plus the tens of thousands of future inmates yet to be dumped into the pipeline)...so as not to put society at risk.

And as much as the prospect of perpetual incarceration might fill vengeful, authoritarian, rock-ribbed hearts with delight, I hope we can agree the illusion of safety it might provide (depending on whether worry worts believe in deterrence) would bankrupt us. Indeed, there are signs it's happening now.

So really, the only tangible value of assurances of safety would seem to be the political gains reaped by those skilled at scaring suggestible, faint-hearted people.

My Thanksgiving wish for the SC is that it picks up a couple of genuinely progressive justices capable of thining the "movement" herd.

Posted by: John K | Nov 27, 2009 11:49:34 AM

John: 123D. Foolproof. Leaves the public alone.

Posted by: Supremacy Claus | Nov 27, 2009 12:51:54 PM

George: Gideon was guilty. The Court used his toilet paper or paper bag petition or whatever he wrote it on as a pretext to generate massive numbers of lawyer jobs.

He is outside a bar where a cigarette machine has been broken into. He has $23 in quarters in his pocket. He is calling a cab, because there is no running from the scene for this entitled, violent career criminal. He gets to ride away in comfort. He puts on an excellent defense for himself, and loses, because, well, who has $23 in quarters near the scene of a vending machine break-in.

Upon the SC decision, the city is forced to release 2000 vicious criminals, causing a crime wave. He is not released because he must have a new trial. Freedom is not the goal, but lawyer make work is. He is offered the best of the ACLU, turns it down, being savvy. He chooses an experienced, private criminal defense attorney who could get anybody off. This time, he gets off. He goes home, spends his time beating up the wife, and drinking himself to death.

Were you told these details wherever you learned about this horrible, ground zero of lawyer rent seeking case?

Posted by: Supremacy Claus | Nov 27, 2009 1:00:41 PM

S.C. Get your facts right. Gideon was foudn NOT GUILTY when he had a lawyer at his second trial.
"Gideon chose W. Fred Turner to be his lawyer for his second trial. The retrial took place on August 5, 1963, five months after the Supreme Court ruling. Turner, during the trial, picked apart the testimony of eyewitness Henry Cook, and in his opening and closing statements suggested the idea that Cook likely had been a lookout for a group of young men who broke in to steal beer, then grabbed the coins while they were at it. Turner also got a statement from the cab driver who took Gideon from Bay Harbor, Florida to a bar in Panama City, Florida, stating that Gideon was carrying neither wine, beer nor Coke when he picked him up, even though Cook testified that he watched Gideon walk from the pool hall to the phone, then wait for a cab. This testimony completely discredited Cook.

The jury acquitted Gideon after one hour of deliberation."

Posted by: Anon 12 | Nov 27, 2009 2:00:16 PM

"These lawyers send out 1000's of their clients to kill 17,000 people a year, and to injure 5 million others, maintaining as much fear as under any totalitarian regime."

S.C. You are off your meds again. Remember Monday the blue pill; Tuesday the red pill. If you need help, someone will untie your arm restraints but only for a few seconds. Maybe a lawyer can do it.

Posted by: Anon 12 | Nov 27, 2009 2:05:46 PM

Same as Bill Otis. Gregg v. Georgia

Posted by: Stan | Nov 27, 2009 3:16:21 PM

As stated before, he picked a pro, instead of the do-gooder ACLU guy. He could get anybody off. You described how. Or are you claiming Gideon had not broken into the vending machine, that justice was served by the acquittal?

Posted by: Supremacy Claus | Nov 27, 2009 5:00:50 PM

Anon 12: You should take the pill that will let you see the Matrix. Not only are you a victim of the criminal cult enterprise (CCE) indoctrination, you think others are insane for seeing the self-evident to any high school grad.

This effect was covered in my discussion of the lawyer term of art, dumbass.

Posted by: Supremacy Claus | Nov 27, 2009 7:57:54 PM

Doug --

"Federalist, the Framers put the Eighth Amendment in the Constitution precisely because they (rightly) feared that voices like yours would always be singing a 'be cruel to criminals' siren song and would often urge a lack of thoughtfulness when society decides how to treat disliked or feared members."

This criticism of federalist is misguided in two respects. First, the Framers were not primarily concerned with citizens who wanted stern sentences; indeed, sentences at the time of the Founding were much harsher, and surrounded with fewer safeguards, than exist today. What the Framers were aiming at in the Eighth Amendment was banning bizarre or exotic punishments sometimes seen in England, such as drawing-and-quartering.

Second, federalist is not, from what I have read of him, urging thoughtless treatment of those society "dislikes or fears." It's incorrect and diversionary to suggest that those aharing federalist's outlook do so out of emotional reactions. Those of us strongly supporting the death penalty, for example, are not motivated by "dislike" of killers (although I suppose the dislike is there -- why shouldn't it be?). We are motivated by the widely shared view that, for some crimes, death is the only punishment that fits.

It doesn't advance the debate to preemptively dismiss the tough-on-crime side as being in the thrall of emotion (fear and dislike), while portraying the easy-on-crime side as thoughtful and reflective. If anything, it's easier to believe that people opposing capital punishment no matter how horrible the offense are the ones motivated by emotion. After all, when abolitionists say that the specific circumstances of the crime don't matter, they are pretty much explicitly dismissing considerations of fact. With facts exiled, what's left is emotion -- namely, in the case of the abolitionist side, oozing, undifferentiated and uncurious "compassion."

Posted by: Bill Otis | Nov 28, 2009 9:52:45 AM

Most thankful for Mapp v Ohio, such as it was before all the conservative court-packing post-Nixon.

Posted by: John K | Nov 28, 2009 10:47:58 AM

Bill, it was federalist who sought to portray my call for "thoughtful rulings in this Term's juve LWOP cases Graham and Sullivan" as the "easy-on-crime" side when he responded this way: "Translation: rulings that will put society at risk.... Let's hope the Supreme Court doesn't follow the "be nice to criminals" siren song."

Moreover, the fact that you quickly turn to discussing the death penalty highlights why I think it is SO important that the rulings in Graham and Sullivan be "thoughtful." These cases have NOTHING to do with death because (1) the death penalty is not at issue, and (2) the defendants did not kill anyone. Yet, as you comment shows, a cursory discussion of the cases too quickly brings in different and potentially distorting concerns.

Meanwhile, I have written recent commentaries supporting the use of emotions in criminal justice decision-making, especially in the context of the death penalty. I do not fault emotions --- in part because they often can produce or encourage enhanced thought about justice. What I fault is thoughtlessness (especially by the judiciary), which is why I made a pitch for "thoughtful rulings in this Term's juve LWOP cases Graham and Sullivan."

To the extent you do not want these issues subject to distorting characterizations, I think you should be as troubled as I am at some of federalist's hyperbolic comments.

Posted by: Doug B. | Nov 28, 2009 11:32:15 AM

But unless and until you are prepared to embrace a totalitarian-type criminal justice system, you too would be eager to see a thoughtful articulation of the scope and meaning of the Eighth Amendment. But perhaps not -- perhaps giving even a moment's thought to those who commit crimes is more than you wish to give. I guess that means I should be thankful that you are not a Supreme Court Justice.

Posted by: Attorney | Nov 28, 2009 1:33:25 PM

Doug --

For hyperbole, one could scarcely outdo John K, whose repeated broadbrush and acid characterizations of the prosecution will singe your ears. But I don't think I've seen you say anthing critical about John K.

The reasons I turned to the death penalty in discussing federalist were (1) that it is his defense of the DP for which he is best known here, and (2) the DP is, I think, the most hotly contested issue in sentencing over time.

I view federalist's use of the phrase "be nice to criminals siren song" as shorthand. It's shorthand with an edge, to be sure, but is mild as these things go. It's much like the phrase "law and order crowd": acceptable as shorthand, but with an edge. Unless the person using that sort of shorthand has nothing more to say -- which is certainly not the case with federalist -- I think it's incorrect to say he's promoting thoughtlessness.

The use of emotion in crafting punishment is a tricky area. On the one hand, as any honest person would have to admit, emotion plays an inescapable part and always has. On the other hand, it is used in debates like this as a one-way perjorative. Those who think as federalist and I do are accused of being prisoners or UNWORTHY emotions such as anger, vengefulness, "bloodlust," and so forth, while those on the other side flatter themselves as compassionate, forgiving, forward-looking, et al. As long as emotion is used in such a one-sided way, I will continue to be suspicious of it.

Posted by: Bill Otis | Nov 28, 2009 3:42:59 PM

What is the ultimate in thoughtlessness?

I love the understated lawyer dozens here. [ http://en.wikipedia.org/wiki/The_dozens ] It is hilarious but not important.

But, really. Not one second of brainiac thought to the 17,000 extra-judicial executions each and every year after year. And that number represents a 40% drop since the Sentencing Guidelines put the lawyer client away for longer. As the Supreme Court dismantling of this great lawyer achievement, a tiny island of success in a Pacific of utter failure, as it sinks into the ocean, the rate should climb again.

I have to invent a name for lawyer blindness, callousness, cruelty toward this mass slaughter. It is not just racism. One has to reach to the neurological stroke vocabulary. A stroke thoroughly destroys a part of the brain. Although, vision at the eyes is normal, the patient does not grasp an object placed right in front of the face. The reason is that the visual part of the brain is gone. Yet, the patient refuses to admit he has a new defect, something analogous to hemianopia with anosagnosia. The patient sees nothing but absolutely believes his sight is normal.

The defect of perception of the lawyer for the suffering of the murder victim and the victim family is so dense it has to come from brain damage suffered in law school. If that can be shown, there is a potential aggregate claim. And the owners of these Hate America law schools have $trillion in assets just awaiting the right lawyer.

Posted by: Supremacy Claus | Nov 28, 2009 5:59:50 PM

Bill, I do not criticize John K. because he does not criticize me. Federalist, in contrast, loves to poke me, and I enjoy poking back. In this thread, federalist's poke concerned my stated interest via the main post in "thoughtful rulings in this Term's juve LWOP cases Graham and Sullivan."

In any event, I share your view that federalist generally does NOT promote thoughtlessness. But, as my first response to his first comment here was meant to assert, I think the Framers put the Eighth Amendment in the Bill of Rights in order to ensure certain severe punishments get second thoughts, even though there will always be members of the public who assert that once a person is branded a criminal and assigned a punishment, he/she does merit further thoughtful consideration. That os why I hope SCOTUS deals with these matters thoughtfully in Graham and Sullivan WITHOUT the distorting realities of the death penalty (which your comments help to highlight).

Posted by: Doug B. | Nov 29, 2009 12:57:23 PM

Doug --

Fair enough. Federalist occasionally pokes at me as well, particularly on drug issues. But he's one of the more reasonable and level-headed commenters, from where I sit anyway.

From what I know of the oral argument, I think thoughtful opinions in Graham and Sullivan are a foregone conclusion. The discussion of the meaning and interpretation of the Eighth Amendment outside the death penalty context could be fascinating indeed. It could, and I predict will, portend a boatload of future sentencing litigation. (In other words, I think the defense will win more than the government will in these opinions. Kennedy will be at full throat, which is generally bad news for the government when the subject is youthful offenders).

Posted by: Bill Otis | Nov 30, 2009 12:37:45 AM

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