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September 21, 2011

Of sentencing note around the circuits yesterday

Teaching and the buzz over Troy Davis and other capital cases kept me from keeping up effectively with all the circuit sentencing rulings yesterday, but handed down were three notable (and notably different) opinions from three different circuits yesterday that I wanted to at least flag here:

From the Second Circuit, US v. Archer, No. 10-4683 (2d Sept. 20, 2011) (available here), discusses a bunch of important sentencing procedure issues in a fraud case.

From the Fifth Circuit, In re Sparks, No. 11-5044 (5th Sept. 16, 2011) (available here), holds that Graham's Eighth Amendment restriction on LWOP sentence is "a new and retroactive rule of constitutional law."

From the Sixth Circuit, Crump v. Lafler, No. 09-1073 (6th Sept. 20, 2011) (available here), holds (via a split panel with a spirited dissent) that Michigan's parole scheme does not create a constitutionally protected liberty interest.

As always, readers are encouraged to help me figure out if one or more of these opinions are especially important and merit extended blog consideration.

September 21, 2011 at 09:44 AM | Permalink


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Doug, with respect to Crump v. Lafler, I'll just note that "spirited" is not a synonym for "cogent." Cole's dissent is laughable. Since when can't a state say that people can be put in a category for parole eligibility with a caveat that a parole board can find that they really shouldn't be in that category?

Amazing how Dem federal judges just love to spring criminals.

Posted by: federalist | Sep 21, 2011 9:52:44 AM

I see no choice but to conclude that Graham is retroactive. Indeed I would be amazed if any court were to come to the opposite result. The fight is going to be over keeping it limited to the damage already done and not allowing it to expand to cover all juvenile offenders.

Posted by: Soronel Haetir | Sep 21, 2011 10:26:34 AM

Numerous state courts (at least at the trial level), have accepted state arguments that Graham is not retroactive. Other arguments accepted: The availability of clemency/pardon means sentence is not LWOP; the defendant was 19 at sentencing (though 17 at time of crime), so he's not a "juvenile," etc. Never underestimate the ability of elected judges to find a way *not* to reduce the sentence of a serious felony offender.

Posted by: Anon | Sep 25, 2011 4:17:36 AM

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