Wednesday, December 17, 2008

EJI files seeks cert on claim that juve LWOP is unconstitutional for 13-year-old offender

I just received a helpful e-mail from the folks at Equal Justice Initiative informing me of a recently filed cert petition challenging under the Eighth Amendment a sentence of life without parole given to an offender who was only 13 years old(!) at the time of his crime.  The full petition can be downloaded below, and here is additional information from this EJI link about this stunning case:

Joe Sullivan is one of only two 13-year-olds in the United States to be sentenced to die in prison for an offense in which no one was killed. Both of these sentences were imposed in Florida, making Florida the only state in the country to have sentenced a 13-year-old to die in prison for a non-homicide.

A severely mentally disabled boy, Joe was blamed by an older boy for a sexual battery that was allegedly committed when they broke into a home together.  The older boy received a short sentence in juvenile detention, but Joe was tried as an adult, convicted of sexual battery, and sentenced to life imprisonment without the possibility of parole.

Only eight people in the country are sentenced to die in prison for any offense committed at age 13.

The lawyer who represented Joe in his one-day trial has since been suspended from the practice of law, and the biological evidence that could have exonerated Joe was destroyed in 1993.  The lawyer appointed to represent Joe on appeal informed the court that there were no issues in his case worth appealing. Joe was unable to challenge his conviction and sentence earlier because he could not afford legal assistance.

Joe has spent 19 years in a Florida prison, where he has been assaulted and suffered deteriorating health. He is now confined to a wheelchair. 

When I learn about cases like this, I have a hard time believing that a country founded on the principles of liberty has become so willing to be so repressive through our criminal justice systems.  Regular readers will not be surprised to hear that I hope the US Supreme Court will take up this case.  And I am discouraged that this kind of case even exists and that officials in other branches of our government cannot bring themselves to address these kinds of sad cases and instead only will react if and when courts order them to be more just and sensible in their sentencing policies. 

Download Sullivan cert petition from EJI

December 17, 2008 in Examples of "over-punishment", Offender Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sentences Reconsidered | Permalink | Comments (6) | TrackBack

Wednesday, November 26, 2008

Georgia high court finds mandatory life term for failure to register unconstitutionally excessive

The Atlanta Journal-Constitution has this article reporting on an important ruling yesterday in Georgia. The article is headlined "State Supreme Court: Sentence for sex offenders overruled; Life in prison breaks Eighth Amendment," and its provides an effective and detailed summary of the court's work:

The Georgia Supreme Court on Tuesday struck down another provision of the state’s tough sex-offender law, calling mandatory life sentences for offenders who fail to register a second time “grossly disproportionate” punishment.

In a 6-1 decision, written by Justice Robert Benham, the court said the life sentence imposed upon 26-year-old Cedric Bradshaw of Statesboro violates the Eighth Amendment’s guarantee against cruel and unusual punishment. “We conclude the imposition of a sentence of life imprisonment is so harsh in comparison to the crime for which it was imposed that it is unconstitutional,” Benham wrote....

On Tuesday, the court ordered Bradshaw, who tried repeatedly to find a place to live without breaking the law, to be re-sentenced. His lawyer, circuit public defender Robert Persse, applauded the ruling. “The state’s penalty provision was excessive and clearly disproportionate to the offense in question,” he said....

In his ruling, Benham noted that someone convicted of voluntary manslaughter or aggravated assault with the intent to murder, rob or rape can receive a sentence as lenient as one year.

Benham also compared Georgia’s mandatory life term with punishment called for in 23 other states.  Of the others, three states call for a maximum punishment of two years; 12 call for sentences of up to five years; six provide maximum terms of 10 years; two allow up to 20 years; and New Hampshire calls for a minimum seven-year sentence, Benham wrote. “Georgia’s mandatory punishment of life imprisonment is the clear outlier, providing the harshest penalty and providing no sentencing discretion,” Benham wrote.  “This gross disparity between Georgia’s sentencing scheme and those of the other states reinforces the inference that [Bradshaw’s] crime and sentence are grossly disproportionate.”

Chief Justice Leah Ward Sears, in a concurring opinion, said life sentences “should be reserved for society’s most serious criminal offenders … Bradshaw’s failure to register as a sex offender, when his underlying crime only landed him in jail for five years, is not the kind of crime a civilized society ought to require him to pay for with his life.”

Justice George Carley issued the lone dissent, calling the decision a “monumental abuse of this court’s authority to determine the constitutionality of legislation.” The Legislature’s amendment in 2006 calling for the mandatory life term “constitutes the clearest and most objective evidence of how society views a punishment,” he wrote.

The Supreme Court of Georgia's ruling in Bradshaw v. State is available at this link.  Writing at Sex Crimes, Corey Yung here asserts that "the majority is exactly right on this one."  I concur and I hope this ruling will embolden other courts to be more deliberative in discharging the constitutional duty to assess whether and when extreme terms of imprisonment are constitutionally excessive. 

November 26, 2008 in Examples of "over-punishment", Mandatory minimum sentencing statutes, Scope of Imprisonment, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

Friday, November 21, 2008

Members of Congress push for commutation of Border Agent sentences

This AP article details the latest effort to encourage President Bush to use his clemency power to do some sentencing justice for two notable federal defendants.  Here are the specifics:

A handful of lawmakers want President George W. Bush to commute the sentences of two Border Patrol agents convicted of shooting a now-convicted drug smuggler and covering it up. The House members said Thursday that Bush should commute the sentence of the two men before he leaves office to show his concern for law enforcement officers and the danger of their jobs. They asked the Justice Department to recommend the agents' cases to Bush....

The lawmakers pushing for the pardon attorney to at least commute the sentence of the Border Patrol agents or possibly pardon them say his action on their plea will be a barometer for other pardons. Ignacio Ramos and Jose Compean were sentenced to 11 years and 12 years, respectively, after being convicted in 2006 of shooting now-convicted drug smuggler Osvaldo Aldrete Davila of Mexico and trying to cover up the incident.... "If you can't do it for Ramos and Compean, how can you do it for anyone on that list?" said Rep. Steve King, R-Iowa....

Rep. John Culberson, R-Houston, said lawmakers will pressure President-elect Barack Obama to show leniency to the agents if Bush does not. Other lawmakers who had signed a letter to the Justice Department's pardon attorney by Thursday morning are Rep. William Delahunt, D-Mass. and Republican Reps. Ted Poe of Texas, Dana Rohrabacher, Howard McKeon and Ed Royce of California and Walter Jones and Sue Myrick of North Carolina.

Some prior posts about the Border Agents case:

November 21, 2008 in Examples of "over-punishment" | Permalink | Comments (1) | TrackBack

Sunday, November 09, 2008

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

Friday, September 19, 2008

Friday follies: "Woman Faces Federal Jail Time Over Spilled Soda"

Thanks to this story from FOXNews, we apparently need to thank federal prosecutors for trying to keep our country safe from radical soda-pop terrorists that have started to infiltrate parts of our military establishment:

An Idaho woman is facing federal charges and possible jail time after refusing to pay for a soda and then spilling it on a counter in a case she calls a waste of taxpayer's money.

U.S. Attorney Tom Moss plans to bring two charges against Natalie Walters, 39, stemming from an Aug. 20 incident at the Boise Veterans Affairs Medical Center, the Idaho Statesman reports.  If convicted, she could face up to six months in federal prison.

Walters, who routinely takes her father to the Boise hospital for treatment, said there is no posted price for soda refills at the center's cafeteria, and she's typically charged between $1 and $1.50 for filling her mug, according to the paper. On Aug. 20, she was charged $3.80, which lead to the dispute and Walters dumping the soda on the cafeteria counter.

Moss' office refused to speak to the Statesman about the case until after Walters' Oct. 8 arraignment. Walters didn't learn of the charges until she was contacted by a reporter for the story. "My father is a veteran. It is a federal facility for veterans. This should have been handled differently," she told the paper. "This is extreme. This is totally extreme. Well, if they have that much time on their hands, go for it."

The full story from the Idaho Statesman, which is headlined "Dumped diet pop lands Idaho woman in federal court," can be found at this link.

September 19, 2008 in Examples of "over-punishment" | Permalink | Comments (5) | TrackBack

Sunday, June 29, 2008

Doesn't Kennedy suggest life in prison for failing to register is unconstitutional?

This new Atlanta Journal-Constitution article highlights an appeal of an extreme state sentence that is another reflection of the modern sex offender panic.  The piece is entitled "Fairness of law to be judged -- Mandatory sentences: Georgia's Supreme Court will consider proportion."  Here are excerpts:

The judge had only one option when he sentenced Cedric Bradshaw: life in prison.  Bradshaw had not committed murder, rape or armed robbery.  His offense was failing to properly register as a convicted sex offender for a second time — even though he had repeatedly tried to follow the law....

On Monday, the state's highest court will consider whether the law is unconstitutional on grounds it is cruel and unusual punishment.

No other state calls for a life sentence for failing to register as a sex offender the second time, and even rape and armed robbery convictions in Georgia do not carry mandatory life terms, said Bradshaw's lawyer, Robert L. Persse, the circuit public defender in Statesboro. "The punishment for a second violation is grossly disproportionate to the offense," Persse said.  "That is particularly true when this is essentially a paperwork offense not accompanied by aggravating circumstances like violence, sexual deviance or being out in a schoolyard hunting for children."

The Bulloch DA's office is urging the state Supreme Court to uphold the life term. "The courts look at the Legislature's intent in determining the best evidence for the appropriateness of the sentence," Assistant District Attorney W. Scott Brannen said. "When they increase it [to a life term], that too is evidence of the intent and the will of the people."...

Brannen, the prosecutor, said the law is on the books and "it's not my place or the court's place to decide what we like and don't like and what we want to enforce or not enforce."  Bradshaw, Brannen said, broke the law by failing to give a valid address within the 72-hour reporting deadline.  "There are no exceptions in the law," he said.

I am not sure what I find more remarkable: the fact that Georgia punishes this regulatory offense with a mandatory life term, or the fact that in the wake of the Supreme Court's Kennedy ruling the defendant here could have sexually molested and beaten a dozen children without facing a harsher sentence.

As regular readers know, I have long been troubled that the U.S. Supreme Court's eagerness to hyper-regulate the reach of the death penalty through the Eighth Amendment has not extended to regulating extreme prison terms for relatively minor crimes.  The Georgia high court has previously shown the courage and wisdom to do something about a seemingly crazy prison sentence, and this would seem to be another case calling out for some remedy.

Further, as my post heading suggests, I think the recent Kennedy ruling from the Supreme Court provides some significant support for Bradshaw's constitutional challenge.  If life in prison is the harshest permissible sentence for the worst child rape, can the proportionality principle in the Eighth Amendment permit a regulatory offense to be subject to the same punishment?

June 29, 2008 in Examples of "over-punishment", Scope of Imprisonment, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (2) | TrackBack

Friday, May 02, 2008

Ohio getting tough on no-snack-sharing rules

I can sleep a little sounder after reading this local article about how tough my state is on its miscreants:

He slept through a fire drill, had loose tobacco in his possession and didn't show up for kitchen duty.  Then Timothy E. Caudill shared a Little Debbie snack cake with another inmate at a correctional facility in southeastern Ohio.  That was the last straw.

The 21-year-old was kicked out of the residential community corrections program that was a requirement of his probation.  And he could go to prison.  That is absurd, said Caudill's attorney, Claire "Buzz" Ball. "Everybody talks about prison overcrowding.  My God, you have to send some guy to prison for sharing a snack?" Ball said.

Vinton County Prosecutor Timothy P. Gleeson has asked Common Pleas Judge Jeffrey Simmons to revoke Caudill's probation and put him in prison.  Simmons is expected to rule soon on the request, which he considered at a hearing April 16.  The prosecutor wants Caudill put in prison for nine months.

With credit for 105 days served at the SEPTA Correctional Facility, he would serve nearly six more months.  Caudill's attorney has asked the judge to keep Caudill on probation or send him to the jail in Athens County, which costs $20 a day less than a state prison. Keeping Caudill out of prison would leave cell space for a more serious offender, Ball said. "My God, over a 50-cent cake, the state would spend $12,600 for six months," Ball said.

Caudill received a sentence of three years' probation Oct. 1, convicted last year of breaking and entering Krazy Katie's, a bar along Rt. 93 just south of McArthur, the Vinton County seat.  He was placed in SEPTA, a community corrections residential program in Nelsonville, on Oct. 10.  The 64-bed program, which offers drug treatment, work training and counseling, imposes strict rules.

Caudill bought the Little Debbie from the vending machine and then knowingly shared it with a fellow inmate who was on restriction and wasn't allowed access to the vending-machine snacks, said Bob Eaton, operations manager at SEPTA.

I wonder if Ohio parents and teachers realize that, when they encourage children to share at home and at school, they are preparing the kids for a life of crime.

May 2, 2008 in Examples of "over-punishment" | Permalink | Comments (26) | TrackBack

Monday, January 14, 2008

New HRW report assailing juve LWOP in California

As detailed in this press statement, today a new report was released by Human Rights Watch calling upon the California legislature to "pass a law this month to end the sentencing of children to prison for life with no possibility of parole."  The report is entitled "When I Die, They'll Send Me Home: Youth Sentenced to Life without Parole in California," and it can be accessed in various ways from this link.  Here is the start of the report's summary:

Approximately 227 youth have been sentenced to die in California's prisons. They have not been sentenced to death: the death penalty was found unconstitutional for juveniles by the United States Supreme Court in 2005. Instead, these young people have been sentenced to prison for the rest of their lives, with no opportunity for parole and no chance for release.  Their crimes were committed when they were teenagers, yet they will die in prison. Remarkably, many of the adults who were codefendants and took part in their crimes received lower sentences and will one day be released from prison.

In the United States at least 2,380 people are serving life without parole for crimes they committed when they were under the age of 18.  In the rest of the world, just seven people are known to be serving this sentence for crimes committed when they were juveniles.  Although ten other countries have laws permitting life without parole, in practice most do not use the sentence for those under age 18. International law prohibits the use of life without parole for those who are not yet 18 years old.  The United States is in violation of those laws and out of step with the rest of the world.

Some recent related posts on juve life sentences:

January 14, 2008 in Examples of "over-punishment", Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (6) | TrackBack

Saturday, January 12, 2008

Genarlow Wilson headed to college

Genarlow I was pleased to see this news report from Atlanta providing an update on the state and fate of Genarlow Wilson.  Here are highlights:

In his two years in prison, Genarlow Wilson did a lot of reading. One of his favorite books: Rick Warren's "The Purpose Driven Life." The title could not be more appropriate for the next chapter in Wilson's highly publicized young life.

Nearly three months out of prison for committing a sex act with a teenager, Wilson, 21, plans to move into a dormitory at Morehouse College this weekend. He will live and study for free, thanks to the Tom Joyner Foundation, an educational nonprofit founded by the nationally syndicated radio personality. The foundation announced Thursday that it will cover the cost of tuition, room and board and books....

"I've been wanting to go to college for so long," said Wilson, who wants to major in sociology or education, with a minor in history. "I want to study and learn so I can be a mentor for others. It was very generous for [Joyner] to do that for me. I won't let him down."...

Wilson was released from prison Oct. 26 after the Georgia Supreme Court ruled that his 10-year sentence for having consensual oral sex with a 15-year-old girl was "cruel and unusual punishment." Wilson, who was 17 at the time of the incident, was convicted of felony aggravated child molestation. At the time, state law mandated a minimum 10-year sentence for the crime. The Legislature eventually changed the law to make such cases misdemeanors when they involved teenagers close in age....

Despite his ordeal, Wilson said he has no regrets. "I'm not mad about anything that happened, really," said Wilson, who now lives in Cobb County. "It helped me grow as a person, made me stronger, made me more ambitious. "I was at my lowest point in life. Now everything I wanted to do can finally happen."

I could not be happier that the Wilson story now has this happy ending; of course, there can be a lot more to the story in the years ahead.  I hope that Wilson might get seriously involved in sentencing reform movements because his name and his story alone can help a lot of politicians and voters understand the harms of — and the challenges to undo — extreme mandatory minimum sentencing provisions.

January 12, 2008 in Examples of "over-punishment" | Permalink | Comments (25) | TrackBack

Wednesday, December 26, 2007

Fascinating proportionality opinion from Oregon court

A helpful reader alerted me to a fascinating opinion from the Oregon Court of Appeals in Oregon v. Rodriguez, No. A131050 (Or. Ct. App. Dec. 26, 2007) (available here).  Both the underlying facts and the legal discussion in this case are noteworthy, and these lengthy excerpts provide only a small flavor of an opinion worth reading in full:

In early 2004, defendant [Victoria Rodriguez] was employed by the Hillsboro Boys and Girls Club to work with at-risk youths....  The victim was a member of the club....  On February 14, 2005, a staff member ... saw defendant and the victim in the game room at the club. There were approximately 30 to 50 youths and at least one other staff member in the room.  The victim, who had since turned 13, was sitting on a chair.  Defendant, who had since turned 25, was standing behind him, caressing his face and pulling his head back; the back of his head was pressed against her breasts.... The contact lasted approximately one minute....

Defendant was eventually charged with first-degree sexual abuse based on the incident.  A jury found defendant guilty....  At sentencing, the prosecutor asked the court to impose the 75-month sentence prescribed by ORS 137.700 (commonly referred to as "Measure 11").  Defendant objected, arguing that the Measure 11 sentence would be unconstitutionally excessive.  Numerous family members, friends, and coworkers testified in support of defendant.  The court agreed with defendant that a 75-month sentence would be cruel and unusual.  The court observed that defendant had no prior criminal record and that she had "lived an exemplary life" and had "really made a very positive impact into the lives of apparently many children * * *." It further noted that the touching occurred "in a crowded room, over clothing, [and was] not prolonged."  The court concluded that a 75-month sentence "just cries out" as being shocking to any reasonable person.  It imposed a 16-month sentence.  This appeal followed....

The state contends, among other things, that, given the nature of the relationship between defendant and the victim, the 75-month sentence mandated by Measure 11 would not shock the moral sense of all reasonable people....  We agree with the state that, given the nature of the relationship between defendant and the victim, there can be no doubt that the Measure 11 sentence would not shock the moral sense of all reasonable people.  It is undisputed that the victim was young and vulnerable, a prototypical "at-risk" youth. Defendant was in a position of trust and responsibility, akin to that of a teacher or youth counselor, charged with helping children make appropriate behavioral choices.  By engaging in sexual conduct with the victim, defendant seriously abused that trust.

In short, we cannot say that the 75-month sentence required under Measure 11 would shock the moral sense of all reasonable people as to what is right and proper under the circumstances.  It follows that the trial court erred in refusing to impose that sentence.

December 26, 2007 in Examples of "over-punishment", Offense Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (10) | TrackBack

Monday, December 03, 2007

Weldon Angelos files 2255 motion

Regular readers will recall the name Weldon Angelos; Angelos faced a mandatory minimum sentencing term of 55 years following three small hand-to-hand marijuana sales.  Some months ago, Weldon's sister asked if I would help with his 2255 motion.  Aided by a great legal team working pro bono, this motion was completed and filed in federal district court today.  The full 50-page motion, which makes an array of constitutional arguments, can be downloaded here:

Download angelos_2255_motion.pdf

Because I am essentially counsel of record, I do not plan to discuss or debate the merits of the motion on this blog.  But I cannot help but use this forum to try to solicit amici support.  Persons concerned with any number of criminal justice issues — ranging from extreme mandatory minimum sentences, prosecutorial charging and bargaining practices, convictions based solely on informant testimony, the reach of the Second, Fifth, Sixth and Eighth Amendments and principles of equal justice — should find the Angelos case interesting and perhaps worthy of some "friendly" brief writing.

UPDATE:  The Salt Lake Tribune reports on the filing in this article.

December 3, 2007 in Examples of "over-punishment" | Permalink | Comments (10) | TrackBack

Former border agents Ramos and Compean having appeal heard today

As highlighted in media coverage linked here by How Appealing, a Fifth Circuit panel will hear today the appeal of former U.S. Border Patrol agents Ignacio Ramos and Jose Compean, who were sentenced to terms of 11 and 12 years of imprisonment for shooting an illegal alien drug smuggler.  As detailed in a series of prior posts, this case has generated lots of political controversy and the severity of the sentences are part of the reason for the case garnering so much attention.  I do not think the appeal is focused on the sentencing terms, but prominent Senators from both parties (Diane Feinstein and Jon Cornyn) have already formally requested that President Bush commute the sentences of Ramos and Compean.

Some prior posts about the Border Agents case:

December 3, 2007 in Examples of "over-punishment" | Permalink | Comments (4) | TrackBack

Friday, November 23, 2007

Judge Professor Paul Cassell still speaking out about unfair sentencing

This article from the Deseret Morning News, headlined "Former federal judge is striving for balance," catches up with former federal judge Paul Cassell now that he has been off the bench and back in the academy for a few weeks. Here are some snippets with a sentencing focus:

Sitting in his temporary office at the S.J. Quinney College of Law, Cassell told the Deseret Morning News that, as a federal judge, he felt there were several areas in federal law that were out of balance, particularly in the areas of minimum-mandatory sentencing and prosecution of some illegal immigrants. He saw some aspects of federal law caught in a vortex of political competitiveness for tougher sentences pushed by members of Congress....

"There's a kind of ratchet effect where the Republicans will say, 'We want a five-year mandatory minimum sentence,' and Democrats will say, 'We'll up you, we want a 10-year mandatory minimum sentence,' and you have people ratcheting up sentences to the point where any reasonable observer would think we've gone too high, but there's no political incentive to undo the mischief." Cassell said, in his mind, it takes political courage to step up and say the punishment does not fit the crime....

Cassell said he found himself questioning some laws at each turn. "I felt like it was proper judicial role to ask questions, even if we weren't necessarily charged with fixing the problem," he said. But he wanted to do more — he wanted to make a change. Being a federal judge, he couldn't do that. "One of the frustrations about being a trial court judge is that you never set broad principles of law; of course, that's reserved for the appellate courts. ... When I was there for 5 1/2 years, I began to think that maybe I would have more effect in moving the law in a way that I think is desirable by doing appellate litigation." Becoming a legal advocate is a better fit, he said. "I felt like for the rest of my life, I wasn't sure I could stay in one place doing one kind of thing. There were some issues I wanted to pursue, particularly working on crime victims' rights, which is an area that I felt very passionately about."

Traditionally, criminal cases involve two parties: the state and the defendant. But a growing trend in courts is to give the victims of crimes more of a voice in cases. In addition to teaching at the U., Cassell plans to work with a Washington, D.C., group that deals with crime victims' rights. It seems being a voice for balance is innate in Cassell.

One of the last things he did as a federal judge is speak out on the issue of sentencing guidelines for crack cocaine. As chairman of the Judicial Conference's Criminal Law Committee, Cassell said he spoke for the judiciary when he sent a letter to the president and Congress supporting the Federal Sentencing Commission's recommendation to reduce sentences for crack cocaine possession versus powder. Such sentences bear a 100-to-1 ratio to sentences for powder cocaine. "The differences between crack and powder cocaine penalties have been hurting the federal judiciary's credibility in minority communities, particularly in the African-American communities, who view the differences as racially motivated," Cassell said.

November 23, 2007 in Examples of "over-punishment" | Permalink | Comments (3) | TrackBack

Friday, October 26, 2007

Why so much fear about a robust Eighth Amendment doctrine?

I am surprised and disappointed to see a few academic bloggers I respect expressing reservations about the Georgia Supreme Court's application of the cruel and unusual punishments clause in the Wilson case.  Specifically, Eugene Volokh has this to say:

I think there are institutional problems with courts’ evaluating the length of confinement under the Cruel and Unusual Punishment Clause; it’s hard to see a good legal rule that courts can sensibly apply in a wide range of cases, and to my knowledge there isn’t the sort of textual or original meaning evidence that strongly points to requiring courts to engage in such a mushy judgment.

And Laura Appleman adds this:

If the claim of cruel and unusual punishment is used more frequently, and in less dire cases than it has traditionally been used (i.e., death penalty cases), are we weakening the doctrine?  I'm not arguing that Genarlow Wilson deserved to remain in jail -- his 10 year sentence was ridiculous on its face.  But I'm a little nervous about using the 8th Amendment as a tool to free him.  Wilson's case was arguably a problem of proportionality -- isn't using the 8th Amendment to free him like using a battering ram when a kick or two would do?

I just do not get these sorts of concerns.  Let's start with Eugene's points.  Why does he or others think the Eighth Amendment's prohibition on "cruel and unusual punishments" is any more "mushy" or less subject to sound judicial line-drawing than the Fourth Amendment's prohibition on "unreasonable searches and seizures" or the Fifth Amendments requirements of "due process" and "just compensation."  Of course, one might contend that all these vague standards defy effective constitutional line-drawing.  But, if one excepts the appropriateness of courts drawing hard lines when interpreting other vague Amendments, I do not quite understand why the protections of the Eighth Amendment should evaporate once a person gets sentenced to a term of confinement. 

Laura raises related issues that also make me scratch my head: for Genarlow Wilson, another 7 years in prison seems pretty dire.  I know everyone thinks "death is different," but many defendants on death row bringing Eighth Amendment claims are going to die in prison as old men before appeals are exhausted.  But, for Genarlow Wilson, this case essentially concerned whether he was going to get to be a free man in his 20s (which is a probably a decade that few adults would want to have spent locked up in a prison).  Though others may disagree, but I am much more eager to use a battering ram for the likes of Genarlow Wilson than for the likes of Ted Bundy.

Finally, Eugene suggests a focus on the text of the Eighth Amendment (which few really do).  As the Wilson majority adroitly notes, statistics suggest that 7.5 million teenagers are involed each year in the specific offense behavior that resulted in 10 years in prison.  Can anyone argue (without using legalese) that it is not "cruel and unusual punishment" for Genarlow Wilson to be only one of this massive population forced to serve 10 years locked in a small cage for this behavior?

October 26, 2007 in Examples of "over-punishment" | Permalink | Comments (30) | TrackBack

Split justice for Genarlow Wilson from the Georgia Supreme Court

As detailed in breaking news stories from the Atlanta Journal-Constitution and from the AP, theGeorgia Supreme Court this morning ordered the release of Genarlow Wilson, the young man who has been serving a 10-year sentence for consensual oral sex. The decision divided the state justices 4-3, but ultimately upholds county judge's ruling that the sentence constituted cruel and unusual punishment. The ruling is available at this link, and the court also has this news release summarizing the decision.  Here is how the opinion begins:

In Case No. S07A1481, the appellant, Warden Carl Humphrey, appeals from the grant of habeas corpus relief to the appellee, Genarlow Wilson, by the Superior Court of Monroe County (hereinafter referred to as the “habeas court”). For the reasons that follow, we conclude that the habeas court properly ruled that Wilson’s sentence of ten years in prison for having consensual oral sex with a fifteen-year-old girl when he was only seventeen years old constitutes cruel and unusual punishment, but erred in convicting and sentencing Wilson for a misdemeanor crime that did not exist when the conduct in question occurred. Because the minimum punishment for the crime for which Wilson was convicted constitutes cruel and unusual punishment, this case must be remanded to the habeas court for it to enter an order reversing Wilson’s conviction and sentence and discharging him from custody.  Accordingly, in Case No. S07A1481, we affirm the habeas court’s judgment in part and reverse it in part. 

In Case No. S07A1606, Wilson appeals the denial, by the Superior Court of Douglas County (hereinafter referred to as the “trial court”), of his motion for release on bail during the pendency of the warden’s appeal in Case No. S07A1481.  Because the trial court properly denied Wilson’s motion for bail, we affirm the trial court’s judgment.

October 26, 2007 in Examples of "over-punishment" | Permalink | Comments (19) | TrackBack

Wednesday, October 24, 2007

Spotting the many statutory errors in Peltier

Commentors here have done a great job highlighting the practical craziness of the Fifth Circuit's adoption of a  "plain error" approach to reasonableness review in US v. Peltier, No. 05-30440 (5th Cir. Oct. 23, 2007) (available here).  But the problems with Peltier run deeper: at the most fundamental level, the Fifth Circuit's approach seems to misunderstand that reasonableness review was embraced in the Booker remedy to "iron out sentencing differences," not simply to protect a defendant's rights.  The whole goal of reasonableness review emphasized by the Booker remedial opinion is undermined by affirming unreasonable sentences because errors are not plain enough. 

Moreover, spotting the many statutory errors in Peltier would make for a good exam in my sentencing classes.  Here are just a few I saw based on a quick read:

1.  Peltier asserts in a footnote that "reasonableness has become ... a substantive standard to be applied by the district court," but that claim transgresses the congressional directive in section 3553(a), which states clearly that a sentencing court "shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth" in 3553(a)(2).

2.  Peltier affirms a statutory maximum sentence of 10 years for a defendant who pleaded guilty to a not-particularly-serious version of felon-in-possession (the defendant had a shotgun in his shed).  Given the requirement in 3553(a)(3) to consider "the kinds of sentences available" and in 3553(a)(6) to "avoid unwarranted sentence disparities," what is reasonable about the district court's determination that the defendant should get the highest legally available sentence for this type of crime (especially given that his guideline range was less than half as long)?

3.   Peltier makes much of the "weight given to the proper factor of need for treatment" to justify the district court's extra long prison term.  However, 18 USC 3582(a) plainly states that courts must "recogniz[e] that imprisonment is not an appropriate means of promoting correction and rehabilitation."

I could go on, but perhaps I need to first re-read Peltier to make sure I'm not overlooking reasons it might not be as bad as it seems.

October 24, 2007 in Examples of "over-punishment" | Permalink | Comments (4) | TrackBack

Tuesday, October 23, 2007

Does Roper suggest young juve LWOP is unconstitutional?

The Baltimore Sun today has this effective editorial, entitled "Too young to die in prison," which builds off the Equal Justice Initiative's recent new report (available here, overviewed here) on life terms for offenses committed by young teenagers.  Here are snippets from the editorial:

Teenagers serving life sentences without the possibility of parole have been condemned to die in prison. It's a death sentence without an executioner, it's perilously close to cruel and usual punishment, and it simply shouldn't be allowed. 

States, such as Maryland, that let juveniles spend the rest of their lives behind bars ignore what researchers and others have shown to be true: These offenders lack the physical and emotional maturity to make rational decisions. A life sentence, with the appropriate parole eligibility requirements and restrictions, would keep these young criminals behind bars for a lengthy period and prevent their release until an appropriate time.

A report issued last week by the Alabama-based Equal Justice Initiative found that nationally, more than 2,225 juveniles, age 17 and younger, have received life without parole sentences. Of those, 73 were 13 or 14 — children by almost any measure — when they committed their crimes....

Their crimes may have been terrible, but there is a reason we have different systems for juvenile offenders: Society recognizes the differences between teenagers and adults; the key difference is that parts of their brains that control impulses, emotions and reasoning are less developed.

Juveniles are barred from buying cigarettes or beer; they can't enlist in the military and aren't supposed to watch R-rated movies unless accompanied by a parent or guardian.  And yet when they commit a serious crime, it's as if they have morphed into adults for purposes of their punishment....

The Supreme Court recognized all these differences when it barred the execution of juveniles, no matter the crime.  But a mandatory life sentence without possibility of parole is just as fatal in its way, and should be prohibited for the same reasons.

I share the editorial's instinct that a fair reading of Roper supports an argument that life without parole for young teenagers is constitutionally excessive under the Eighth Amendment.  I suspect others may agree.  But it is telling (and troubling) that these viable constitutional arguments on behalf of young offenders facing life terms have not gotten nearly the traction and attention — from courts, the media or academics — that has been given to older offenders facing lethal injections.

Some related posts:

October 23, 2007 in Examples of "over-punishment", Offender Characteristics, Scope of Imprisonment | Permalink | Comments (26) | TrackBack

Monday, July 23, 2007

Commentaries and editorials on border agents case

A new week brings a new set of commentaries and editorials about the border agents case.  Interestingly, as the headlines below suggest, not everyone has the same perspective on this case:

Commentary here from Debra Saunders, "Where's George Bush: Free the Border Patrol Two"

Commentary here from Rick Lowry, "Justice demands sentence commutation for border agents"

Editorial here from the Houston Chronicle, "Border incident Inflexible sentencing law — not prosecutor — created long sentence for rogue border agents"

Editorial here from the Sacramento Bee, "Feinstein takes the low road with border agents: With a grandstanding hearing and a letter to Bush, senator stoops to tarnish -- herself"

Some prior posts about the Border Agents case:

July 23, 2007 in Examples of "over-punishment" | Permalink | Comments (0) | TrackBack

Friday, July 20, 2007

Report on Genarlow Wilson argument in Georgia

The AP has this article providing the basics of today's argument before the Georgia Supreme Court in the Genarlow Wilson case.  Here are a few snippets:

Attorney General Thurbert Baker argues that the order to free Wilson, if upheld, could be used to help free some 1,300 child molesters from Georgia prison.  "We urge you to look beyond the confines of this case," Senior Assistant Attorney General Paula Smith told the court's seven justices Friday.

Wilson's lawyer, B.J. Bernstein, said that Wilson's decade-long mandatory sentence violated the constitutional ban on cruel and unusual punishment.  "Every day that a defendant spends in jail is a precious day in their life," Bernstein said.

The justices seemed to be wrestling with how to provide Wilson relief under the law. "We have a responsibility to enforce the law," Justice Robert Benham asked.  "Should we do that at the expense of fairness?"

How Appealing has more coverage of the argument at this link.

July 20, 2007 in Examples of "over-punishment" | Permalink | Comments (3) | TrackBack

Wednesday, July 18, 2007

Bipartisan call for commuting border agent sentences

Especially in these partisan times, it is encouraging to see bipartisanship on any issue.  And, as detailed in this Lou Dobbs commentary, the extreme sentences for former border agents Ignacio Ramos and Jose Compean has brought leading Senators from both sides of the aisle together:

There was an unusual spectacle in the nation's capital Tuesday, downright rare, in fact: U.S. Senators seeking truth, and justice, and taking action.  And they deserve great credit and thanks. The Senate Judiciary Committee hearing, led by Dianne Feinstein, focused on the reasons for the prosecution of two Border Patrol agents now serving long sentences in federal prison.  Border Patrol Agents Ignacio Ramos and Jose Compean were given terms of 11 and 12 years respectively on their convictions for shooting an illegal alien drug smuggler. Senator Feinstein, and Senators Jeff Sessions, John Cornyn, Jon Kyl and Tom Coburn demanded answers of U.S. Attorney Johnny Sutton, who chose to prosecute Compean and Ramos and give that illegal alien drug smuggler blanket immunity to testify against the men....

Senator Feinstein and Senator Cornyn announced Tuesday night on our broadcast that they have decided to request that President Bush commute the sentences of Ramos and Compean.

Some prior posts about the Border Agents case:

July 18, 2007 in Clemency and Pardons, Examples of "over-punishment", Scope of Imprisonment, Who Sentences | Permalink | Comments (13) | TrackBack

Tuesday, July 17, 2007

Reports on Senate hearing on Border Agent case

Reports from the Houston Chronicle, from the AP, from The Hill and from The Corner at NRO provide some highlights from Tuesday's Senate Judiciary Committee hearing examining the prosecution and sentencing of former border agents Ignacio Ramos and Jose Compean.  Also available at this official site are links to the witnesses' written testimony and an archived webcast of the hearing.

Some prior posts about the Border Agents case:

July 17, 2007 in Examples of "over-punishment" | Permalink | Comments (0) | TrackBack

Sunday, July 15, 2007

Senate hearing on Border Agent prosecutions

As detailed at this official site, the Senate Committee on the Judiciary has scheduled a "Hearing to Examine the Prosecution of Ignacio Ramos and Jose Compean" for the morning of Tuesday, July 17, 2007.  Notably, Senator Dianne Feinstein is slated to preside. 

As I have explained in many prior posts (some of which are linked below), I think the prosecution and sentencing of these former border agents  spotlight the many flaws with mandatory sentencing provisions and the severe penalties that some defendants receive largely for exercising their right to go to trial rather than pleading guilty.  I am hopeful that these sentencing issues will be a big part of the Senate hearing.

Some prior posts about the Border Agents case:

July 15, 2007 in Examples of "over-punishment" | Permalink | Comments (0) | TrackBack

Thursday, July 12, 2007

Prosecutors gone wild

This AP story chronicles the latest saga in the sad tale that is the Genarlow Wilson case (details in this archive) out of Georgia.  Here are snippets:

David McDade has handed out some 35 copies of a video of teenagers having sex at a party.  McDade is no porno kingpin, but a district attorney.  And he says Georgia's open-records law leaves him no choice but to release the footage because it was evidence in one of the state's most turbulent cases — that of Genarlow Wilson, a young man serving 10 years in prison for having oral sex with a girl when they were teenagers.  McDade's actions have opened him up to accusations that he is vindictively misusing his authority to keep Wilson behind bars — and worse, distributing child pornography.

UPDATE:  I see two remarkable new posts at Above the Law suggesting that Mr. McDade has a track record that should make good prosecutors cringe:

The saddest part of all this, of course, is that McDade continues to wreck havoc on Georgia justice while Genarlow Wilson remains behind bars.  It is a sad shame that Georgia's Attorney General and Governor are far less concerned about the unjustifiable activities of rogue prosecutors than about teenagers' consensual sexual activities.

July 12, 2007 in Examples of "over-punishment" | Permalink | Comments (8) | TrackBack

Wednesday, June 27, 2007

Genarlow Wilson to remain in prison, despite ruling that his sentence is unconstitutional

Howard Bashman notes reports from the AP and from the Atlanta Journal-Constitution that a state judge has now ruled that Genarlow Wilson is not eligible for bond pending the state's appeal of a ruling that his sentence is unconstitutional.  As previously detailed here and here, lower court has already ruled that Wilson's original sentence was unconstitutional, although that ruling due to be review by the Georgia Supreme COurt in the fall (details here).

I do not quite understand why executive officials in Georgia believe it is necessary and appropriate — or even lawful — to keep Wilson in prison when the last state judge to review this case has declared Wilson's sentence unconstitutional.  I understand that the Georgia Attorney General regards the lower court's ruling as problematic.  But given that the AG apparently recognizes that Wilson presents no risk of flight or dangerousness, shouldn't he agree to Wilson's release pending appeal.  Indeed, might one argue that it is unconstitutional for the Georgia AG to continued Wilson's imprisonment under these circumstances?

June 27, 2007 in Examples of "over-punishment" | Permalink | Comments (11) | TrackBack

Tuesday, June 26, 2007

Putting money where the sentencing injustice is

As detailed in articles appearing in USA Today and the Atlanta Journal-Constitution, a "New York investment manager and 10 of his friends have pledged $1 million in cash to try to win the release of a Georgia man imprisoned for a consensual sex act."  Here are more details from the USA Today article:

Genarlow Wilson, 21, is serving a 10-year sentence for receiving oral sex from a 15-year-old girl when he was 17.  He has been behind bars for more than 28 months.  Two weeks ago, a Monroe County judge ordered his release.  Because Georgia Attorney General Thurbert Baker appealed, however, Wilson remains in prison.

"A miscarriage of justice has occurred here, yet he's still in jail," says Whitney Tilson, a mutual and hedge fund manager who will commit $100,000 of his own money to a bond fund for Wilson.  Tilson, who is founder and managing partner of T2 Partners Management LP and Tilson Mutual Funds, read about Wilson's case in December and thought his punishment was excessive.

Related posts will background on the Genarlow Wilson case:

June 26, 2007 in Examples of "over-punishment" | Permalink | Comments (1) | TrackBack

Thursday, June 14, 2007

Notable coverage of Genarlow Wilson saga

Coverage of the Genarlow Wilson case continues to provide interesting food-for-thought.  Anyone following the Wilson case closely will definitely want to check out these two interesting articles:

Following up the AJC article, this AP article has now hit the wires, headlined "Prosecutor meddling in teen sex case?  Mother of girl changed statement to newspaper after visit by assistant DA."

UPDATE:  This AP story reports that "Georgia's Supreme Court agreed Thursday to hear the state's arguments for keeping in prison a man who had consensual sex with a 15-year-old girl when he was 17.  The story also provides more details about reactions to the case and the decision by the Georgia AG to appeal.

June 14, 2007 in Examples of "over-punishment" | Permalink | Comments (6) | TrackBack

Parents start serving 27 months for serving alcohol at son's 16th birthday party

Cover_large The Washington Post in this editorial, and David Bernstein here at The Volokh Conpirary, are justifiably spotlighting the apparent injustice in this story of two parents given 27-month(!) jail terms for having provided beer and wine at a backyard birthday party for their son when he turned 16. 

According to the Post editorial, the prosecutors "originally sought a three-month sentence," but apparently a juvenile court judge "originally imposed eight-year sentences" only an appeals court cut the sentence to the 27 months now to be served.

Commentors at Volokh indicate that the parents' wrongdoing went beyond just serving alcohol.  But, geez, wouldn't the three-month sentence (or even six months or nine months) sought by prosecutors have been sufficient?  I have long thought that any sentence more than twice what a prosecutor requests should be considered presumptively (though not per se) unreasonable. 

More details about this case and related matters are available in this cover article from a publication called "The Hook."  The article spotlights that the long sentence given to the parents should have a profound deterrence effect, though I'd think a shorter sentence could do the trick.  Can anyone suggest reasons why such a long jail sentence is necessary under these circumstances?

June 14, 2007 in Examples of "over-punishment" | Permalink | Comments (7) | TrackBack

Wednesday, June 13, 2007

Genarlow Wilson faces at least another month in prison

As detailed in this Atlanta Journal-Constitution article, despite a big win in his state habeas action overturning his initial sentence, "Genarlow Wilson will remain behind bars at least until next month, when a judge will decide whether he should be released from prison pending an appeal."  Here are some more details:

Wilson, now 21, moved a step closer to freedom Monday when Monroe County Superior Court Judge Thomas H. Wilson granted his petition to throw out his 10-year prison sentence.  The judge agreed the sentence "would be viewed by society as 'cruel and unusual' in the constitutional sense of disproportionality." The judge also ordered him freed from prison and changed his felony conviction to a misdemeanor without the requirement that he register as a sex offender.

Within hours, however, state Attorney General Thurbert Baker filed notice that he would appeal the ruling to the Georgia Supreme Court.  Baker is arguing the judge overstepped his authority. Several civil rights activists demonstrated outside Baker's office Monday, calling on him to back off his appeal or resign. "I think he should be admired for standing up in the face of all that and doing his job," [Douglas County District Attorney David] McDade said. "His sworn duty is to protect all Georgians."

Related posts will background on the Wilson case:

June 13, 2007 in Examples of "over-punishment" | Permalink | Comments (4) | TrackBack

Monday, June 11, 2007

Georgia AG appeals to keep Genarlow Wilson locked up

This new CNN article disappointingly reports that the Attorney General of Georgia "quickly filed a notice of appeal, keeping Genarlow Wilson in prison for the time being" in the wake of the state court ruling earlier today reducing his crime and sentence (basics here and here).  Here are more details:

The prosecutor's move brought an abrupt halt to the jubilation Wilson's mother, Juannessa Bennett, and his attorney, B.J. Bernstein, were feeling, and the plans they were making for Bennett to be reunited with her son.  "It is extremely, extremely disturbing that the attorney general would take this action now," Bernstein said, adding that she did not know what message "he's trying to send" or "who he's representing."

In a written statement, Georgia Attorney General Thurbert Baker said he filed the appeal to resolve "clearly erroneous legal issues," saying that while the judge did have the authority to grant habeas relief, he did not have the authority "to reduce or modify the judgment of the trial court."  Separately, Baker noted that Douglas County recently had offered a plea deal "that would have allowed Genarlow Wilson to plead to First Offender Treatment, which would mean that he would not have a criminal record nor would he be subject to registering on the sex offender registry once his sentence had been completed."

I would be interested to hear reactions from current and former prosecutors about the Georgia AG's decision to so swiftly seek an appeal.  I also wonder, if Baker is comfortable with a plea deal that gets close to the same result as the court ruling, why the rush to appeal?

June 11, 2007 in Examples of "over-punishment" | Permalink | Comments (21) | TrackBack

Snippets from the Wilson ruling from Georgia

The Atlanta Journal-Constitution now has this coverage of the state court ruling reducing the crime and sentence of Genarlow Wilson (basics here).  There is a written opinion supporting the rule, and here are inspiring snippets:

In the Petitioner's case, the imposition of the rnandatory minimum 10-year prison sentence without parole and sex offender registration for consensual oral sex between teenagers would be viewed by society as "cruel and unusual" in the constitutional sense of disproportionality, especially in light of Petitioner's having never been convicted of a prior crime....

If this Court, or any Court, cannot recognize the injustice of what has occurred here, then our court system has lost sight of the goal our judicial system has always strived to accomplish — Justice being served in a fair and equal manner.

When I first heard about the Wilson case last December, I explained here and here why I thought Genarlow had a viable Eighth Amendment claim.  I am glad a state judge in this case agreed.  Now if the state prosecutors could have the good sense not to bother with an appeal.

June 11, 2007 in Examples of "over-punishment" | Permalink | Comments (8) | TrackBack

Genarlow Wilson prevails in state habeas appeal

Good news for folks like me hoping that justice would prevail in the Genarlow Wilson case.  Here is the early report from the AP of today's major development in the case:

A judge on Monday voided a 10-year sentence for a man accused of having consensual oral sex with a 15-year-old girl when he was 17.  He instead gave Genarlow Wilson a 12-month misdemeanor sentence with credit for time already served.  The state is likely to appeal the ruling.

Wilson's original sentence, for aggravated child molestation, was widely criticized on the grounds it was grossly disproportionate to the crime, and state lawmakers later passed a law to close the loophole that led to the 10-year sentence. 

Wilson, now 21, has already served more than 27 months.  He could remain behind bars while the appeal proceeds.

I am not quite sure why (or even how) Wilson can remain incarcerated if he has now been given a sentence that has been fully served.  I suppose there may be a mechanism under state law for prosecutors to stay the sentence change ordered today, but I sure hope Wilson gets his release very soon.  He certainly does not seem like a flight risk or a danger to the community.

Related posts will background on the Wilson case:

June 11, 2007 in Examples of "over-punishment" | Permalink | Comments (6) | TrackBack

Friday, June 08, 2007

More strong calls for justice for Genarlow Wilson

Because I was in Atlanta this morning for an Eleventh Circuit argument (reported by the media here and here), I saw the print copy of this extended editorial in the Atlanta Journal-Constitution entitled, "Teen's search for justice: Genarlow Wilson's 10-year sentence for consensual sex ought to be thrown out by judge."  TChris at TalkLeft here discusses the editorial and the fact that former President Jimmy Carter has spoken out in favor of justice for Genarlow.  A ruling on Wilson's state habeas action is expected on Monday.

Recent related posts:

June 8, 2007 in Examples of "over-punishment" | Permalink | Comments (1) | TrackBack

Wednesday, June 06, 2007

Genarlow Wilson state habeas appeal update

A scheduled hearing on Genarlow Wilson's state habeas action has the Atlanta Journal-Constitution again discussing this remarkable case with this article, entitled "Sex landed him in prison; will petition bail him out?", and this op-ed by columnist Cynthia Tucker, entitled "Genarlow Wilson should be free."  For a lot more background, check out these prior posts about the case:

UPDATE:  This AP story provides a brief account of the argument in the Wilson case today, but it has no information about whether and when a ruling on the merits might be forthcoming.

MORE:  This updated AP piece indicates that the state judge "says he'll make a decision by Monday in the case of a Georgia man who was sentenced to 10 years in prison for having consensual oral sex with a 15-year-old when he was two years older than she was."

June 6, 2007 in Examples of "over-punishment" | Permalink | Comments (2) | TrackBack

Wednesday, April 18, 2007

Will Genarlow Wilson get Duke justice?

The sad Genarlow Wilson case from Georgia (background here and here and here) is generating more press in the wake of the upstanding way in which North Carolina's Attorney General admitted mistakes in the Duke case.  Here is some of the latest coverage and commentary:

Some recent related posts:

April 18, 2007 in Examples of "over-punishment" | Permalink | Comments (2) | TrackBack

Friday, April 13, 2007

Genarlow Wilson seeking state habeas relief

The sad Genarlow Wilson case from Georgia (background here and here) is back in the news because, as detailed in this news story, Wilson's lawyer, BJ Bernstein "filed a petition for writ of habeas corpus Thursday with the Superior Court of Monroe County."  In addition, as detailed on this website, advocates for Wilson are hoping to leverage the events in the Duke rape case to get justice for Wilson.  Here's what the website says:

Yesterday we saw the Attorney General of North Carolina step forward as the chief law enforcement officer to correct an injustice by a district attorney in the Duke rape case. Genarlow Wilson now appeals to the Attorney General of Georgia, Thurbert Baker to use his power to act justly, and review and consent to Wilson's habeas petition.  As the guardian of justice in this State, we appeal to him to correct this grave injustice.

Makes sense to me.

Some recent related posts:

April 13, 2007 in Examples of "over-punishment" | Permalink | Comments (0) | TrackBack

Tuesday, April 03, 2007

More attention for Genarlow Wilson

I am pleased to see continued major media coverage of Genarlow Wilson's case (prior examples here and here).  Here are too more pieces complaining about the extreme sentence Wilson is serving for a consentual sexual encounter with another teenager:

April 3, 2007 in Examples of "over-punishment" | Permalink | Comments (1) | TrackBack

Thursday, March 29, 2007

A new website inspired by Genarlow Wilson

I have not blogged about the Genarlow Wilson case much lately because there has not been much to report.  Despite a flurry of media coverage calling for Wilson's release (details here and here), Georgia officials have not responded and Wilson is now deep into his third year in prison serving a 10-year sentence for a crime that Georgia law now classifies as a misdemeanor subject to only 12 months imprisonment.

Meanwhile, Wilson's case has inspired the creation of a new non-profit organizarion called "My 5th," which has this intriguing new website.  The website's home page states, "With this website, blog and workshops, MY 5th wants to prevent you from paying the price for not knowing the law!!!! Use the law, don't let it use you!!!".  An intriguing and diverse set of individuals are on My 5th's board, and Wilson's lawyer is listed as the president and founder of the organization.  Not suprisingly, Wilson's case is featured here on the My 5th site.

Some related Genarlow Wilson posts:

March 29, 2007 in Examples of "over-punishment" | Permalink | Comments (2) | TrackBack

Wednesday, March 28, 2007

A Texas juve case creating controversy

Thanks to posts at TalkLeft and Grits for Breakfast, I have become away of a controversial case of seemingly unduly severe juvenile punishment coming out of Texas.  This AP story has these highlights:

A teenager has been jailed for more than a year for shoving a teacher's aide at her high school, sparking anger and heightening racial tensions in rural East Texas.  Shaquandra Cotton, now 15, claims the teacher's aide pushed her first and would not let her enter school before the morning bell in 2005.

A jury convicted her in March 2006 on a felony count of shoving a public servant, who was not seriously injured.  The girl is in the Ron Jackson Correctional Complex in Brownwood, about 300 miles from her home in Paris....  Under the sentence handed down by Lamar County Judge Chuck Superville, she will remain at the facility until she meets state rehabilitation standards or reaches her 21st birthday.

But her family and civil rights activists say they want her home now. They are condemning the sentence as unusually harsh and say it shows a justice system that punishes young offenders differently, depending on their race.  Creola Cotton, Shaquandra's mother, and activists argue that while Superville sent Shaquandra to the state's juvenile prison system, he gave a white 14-year-old arsonist probation. As many as 400 people marched and rallied in Paris on Tuesday, the second such protest in as many weeks by civil rights groups.

Meanwhile, the Paris school district fiercely denied claims of racism and chided the girl's mother for "playing a game" to start controversy.... Creola Cotton is preventing the district from fairly defending itself by refusing to let the school district make her daughter's entire record public, [Paris school district attorney Dennis] Eichelbaum said. "Mrs. Cotton has been wrongfully attacking the character of the district," Eichelbaum said. "She's being disingenuous with regard to her daughter being an innocent child."...

Prosecutors say they offered Shaquandra a plea agreement that would have reduced the felony charge to a misdemeanor and given her two years' probation.  But Creola Cotton rejected the plea behalf of her daughter, prosecutors said.

The Dallas South Blog, whose author Shawn Williams comes from Paris, Texas, offers lots of comments on the case here and here and here.  Also, there is a blog, Free Shaquanda Cotton, which pleads "Please help me, Shaquanda Cotton, receive proper justice. Leave me notes of encouragement, donate to my trust fund, and spread the word!"  That blog has links to other media coverage of this case.

March 28, 2007 in Examples of "over-punishment", Race, Class, and Gender | Permalink | Comments (18) | TrackBack

Thursday, March 01, 2007

Request for hearings on the border agent case

According to this (partisan?) news report, "[t]hirty-eight Republican congressmen have written to Speaker of the House Nancy Pelosi asking for hearings to investigate the prosecution of Border Patrol agents Ignacio Ramos and Jose Compean, who are in prison for their actions in the shooting of a drug smuggler given immunity to testify against them."  Here are more details:

The sharply worded letter, sent Tuesday, is critical of the prosecutor, U.S. Attorney Johnny Sutton, and federal investigators. The congressmen say "serious questions remain unanswered by our federal government over the apparently misguided prosecution of two distinguished U.S. Border Patrol Agents, Ignacio Ramos and Jose Compean."  The letter further charges that relevant federal agencies have "delayed or denied" congressional requests for information and that "certain federal investigators have even misled us about the case."...

The letter also was addressed to Rep. John Conyers, D-Mich., chairman of the House Judiciary Committee; Rep. Bennie Thompson, D-Miss., chairman of the House Homeland Security Committee; and Rep. Henry Waxman, D-Calif., chairman of the House Oversight & Government Reform Committee. Among the Republican signatories are Reps. Ted Poe and John Culberson of Texas; Duncan Hunter, Dana Rohrabacher and Mary Bono of California; Dan Burton of Indiana; Frank Wolf of Virginia; and Tom Tancredo of Colorado.

As WND reported, Sen. Patrick Leahy, D-Vt., has given Sen. Dianne Feinstein, D-Calif., permission to investigate the prosecution and sentencing of Compean and Ramos.  Feinstein, who said she believes the sentences were "extreme," has postponed the Senate hearings, originally scheduled for Feb. 27.

Some recent related posts:

March 1, 2007 in Examples of "over-punishment" | Permalink | Comments (0) | TrackBack

Tuesday, February 27, 2007

Perhaps if Justices Kennedy and Breyer realized the world cares a lot...

about the cert denial in Berger (details here and here), the outcome might have been different.  Of course, notwithstanding Justice Kennedy's opinion in Roper and Justice Breyer's willingness to defend reliance on foreign precedents, it is unfair to assert that they would have voted for cert if they knew the cert denied would garner international attention.  (Moreover, it is possible that both Justices voted for cert but that there weren't enough other votes.) 

Nevertheless, I think it is notable that this afternoon I have been contacted by two members of the foreign press to talk about the Berger case.  Specifically, I just finished a long interview with a reporter from Brazil's Vision magazine, and in a few hours I will have the honor of doing an interview with BBC Radio 5Live, which is part of national talk radio in the UK.   (Perhaps this is a variation on the Greenhouse effect, since I believe Linda Greenhouse's kind use of my quote in her Berger story has led to my 15 seconds of international fame.)

Some related posts on the Berger case:

February 27, 2007 in Examples of "over-punishment" | Permalink | Comments (8) | TrackBack

Monday, February 26, 2007

More on the cert denied in Berger

Thanks to How Appealing, I see that the AP has a short piece and Reuters has a longer piece on the Berger cert denial.  (The case involves first-offender Morton Berger challenging his 200-year prison sentence for possessing child pornography (basics here, commentary here).)

In this earlier post I suggested that, though cert was denied today in the Berger case (recently discussed here), some Ninth Circuit precedents should perhaps give Morton Berger some hope for a federal habeas action.  But Orin and Kent in the comments rightly note that Morton Berger's case faces additional hurdle in habeas: the statutory limits on granting relief set out in the AEDPA.  (Of course, the Ninth Circuit has been know to find ways around AEDPA.  But it was because of habeas headaches that I believed SCOTUS should take up Berger's case on direct review.)

So here is my question to Orin and Kent and anyone else interested in playing along: 

What should Berger and his lawyer do now? 

Since Berger has already lost in the Arizona Supreme Court, I doubt state collateral review is likely to be successful.  I suppose Berger could and should seek a commutation from the Arizona governor or a retroactive change in the law from the Arizona legislature, but the Genarlow Wilson saga highlights that other branches are not so good at doing justice in cases of extreme sentencing.  So, is the cert denial the end of the line for Berger?

February 26, 2007 in Examples of "over-punishment" | Permalink | Comments (22) | TrackBack

Friday, February 23, 2007

Another chance for cert in Berger

In my punitive damages commentary here and here after the SCOTUS Philip Morris decision, I have suggested that Justices eager to constitutionally second-guess some harsh corporate punishments should also be willing to constitutionally second-guess some harsh individual punishments.  And a case now being reviewed by the Court — in which first-offender Morton Berger challenges his 200-year prison sentence for possessing child pornography (basics here, commentary here) — presents a unique opportunity for the Court (and its new Justices) to grapple with its confusing non-capital Eighth Amendment jurisprudence.

As detailed in this docket sheet, the Berger case was discussed by the Justices at conference last week and is now slated to be discussed again today.  For various reasons developed in prior posts, the Berger case seems like a great vehicle for the Court to explore its doctrines on what constitutes cruel and unusual punishment:

February 23, 2007 in Examples of "over-punishment" | Permalink | Comments (9) | TrackBack

Latest news and thoughts on Genarlow Wilson

ABC News has this long piece with background and the latest developments in the Genarlow Wilson saga.  The piece has me thinking again about the legality of Wilson's continued service of a 10-year prison sentence even though the Georgia legislature subsequently "reclassified Wilson's offense from a felony to a misdemeanor" for which the harshest sentence is a year in jail.

Consider this analogy.  Suppose the Maryland legislature repeals the state's death penalty, but does not address what to do about the nine persons current on Maryland's death row.  Would it be proper (or constitutional) for prosecutors to still seek the execution of these nine previously-convicted capital offenders? 

If it feels very wrong to imagine seeking the execution of previously convicted capital defendants after a legislative repeal of the death penalty, Genarlow Wilson's continued imprisonment should also feel very wrong.  Wilson has already served twice as long a sentence as Georgia law now currently provides for his crime.  I view continuing to imprison Wilson based on a conviction with a now-repealed sentencing term to be analogous to trying to execute a capital defendant even after a repeal of the death penalty.

Some related Genarlow Wilson posts:

UPDATE:  A loyal reader points to 1 U.S.C. § 109, a provision of federal law that states:

The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.

I guess that means that, in 2009, if President Hillary Clinton signs a bill passed by Congress to repeal the federal death penalty, Attorney General Bill Clinton can and should still seek the execution of the roughly 50 defendants on federal death row unless that legislation expressly provides for a different sentence for these previously convicted capital killers.

February 23, 2007 in Examples of "over-punishment" | Permalink | Comments (9) | TrackBack

Wednesday, February 21, 2007

Analogizing extreme punitive damages and extreme punitive sentences

My take on the Philip Morris decision has already generated many thoughtful comments, which prompt me to develop a bit more the analogies I see between extreme punitive damages and extreme punitive sentences.  Here goes:

1.  Both punitive schemes are authorized by legislatures.  Before a jury can impose extreme punitive damages, such damages have to be directly authorized or at least indirectly permitted by legislatures.  Legislatures can put caps on punitive damages.  The dissenters in Philip Morris likely believe that limits on punitive damages should come from democratic lawmaking and not from judicial constitutional creation.

2.  Extreme punitive outcomes are the product of case-specific decisionmakers gone wild.  Extreme punitive damages awards are typically the product of a particular jury deciding to bring the hammer down on a particular tortfeasor it does not like (for good or bad reasons).  Extreme punitive sentences are typically the product of a particular prosecutor deciding to bring the hammer down on a particular offender it does not like(for good or bad reasons). 

3.  The deep harms of extreme outcomes may come from the pressure to settle/plea.  A judgment of $80 million probably does not cause much of a blip in most major corporate balance sheets.  But, extreme awards drive up the costs of litigation and produce pressure on corporations to settle weak cases rather than run the risk of out-of-whack punitive damages.  Similarly, a harm of extreme sentences is that they are only imposed on defendants exercising their trial rights and ticking off prosecutors seeking a plea (see, e.g., Berger and Wilson and the border agent cases and just about every other out-of-whack criminal sentence).

4.  Judicial moderation of both types of extreme outcomes seems warranted in light of the Bill of Rights.  For the record, I am comfortable with some judicial regulation of extreme punitive damages awards.  Extreme out-of-whack jury awards surely can create real harms that legislatures will not always (and perhaps should not always) seek to address.  Extreme out-of-whack sentences surely can create real harms that legislatures will not always (and perhaps should not always) seek to address.

February 21, 2007 in Examples of "over-punishment" | Permalink | Comments (7) | TrackBack

Activist liberty: second guessing corporate punishment by state juries and courts in Philip Morris

I have never quite understood Justice Breyer's concept of active liberty, especially since the concept seems hard to square with Justice Breyer's antipathy toward the Apprendi-Blakely line of constitutional decisions.  And Justice Breyer's majority opinion for an unusual coalition of justices in the Philip Morris punitive damages case does not help me understand his vision constitutional adjudication.  But, I do understand some other important realities after Philip Morris:

1.   At least five members of the Supreme Court remain willing and perhaps eager to place significant constitutional limitations through the Due Process Clause on punitive damages awards.  And, since Justice Stevens notes that there is "little difference between the justification for a criminal sanction, such as a fine or a term of imprisonment, and an award of punitive damages," criminal defense attorney might look for ways to use Philip Morris when attacking certain sentencing outcomes.

2.  Philip Morris champions federal judicial regulatory power over the authority of state juries and courts.  In Philip Morris, a state jury decided that a corporation deserved to be punished to the tune of $79.5 million; Oregon state courts ultimately found this punishment to be justifiable.  But the five members of the Supreme Court essentially overruled these judgments while announcing a new judicially-created constitutional limit on punitive damages awards.

3.  The five Justice in the Philip Morris majority includes both Chief Justice Roberts and Justice Alito, but neither Justice Scalia or Justice Thomas.  If President Bush's goal truly was to appoint justices in the mold of Scalia and Thomas, Philip Morris would suggest he failed. 

4.  As I suggest in my initial post on Philip Morris, it remains to be seen if the five Justices who are prepared to constitutionally second-guess certain instances of harsh corporate punishment might also be willing to sometimes constitutionally second-guess certain instances of harsh individual punishment.

February 21, 2007 in Examples of "over-punishment" | Permalink | Comments (8) | TrackBack

Tuesday, February 20, 2007

SCOTUS continues to regulate corporate punishment

As detailed in this AP article and this early report from SCOTUSblog, the Supreme Court has ruled "that it is unconstitutional for a jury to award punitive damages out of a desire to punish a company for harming individuals other than those directly involved in the lawsuit in Philip Morris USA v. Williams Estate (05-1256)." 

I hope that the Court's continuing willingness to declare unconstitutional specific instances of excessive corporate punishment might, in some way, get extended to its review of cases involving excessive individual punishment.

February 20, 2007 in Examples of "over-punishment" | Permalink | Comments (2) | TrackBack

Ugly debate in Wilson case

Instead of dealing with the fact that Genarlow Wilson is serving a 10-year sentence for a crime that the Georgia law now classifies as a misdemeanor subject to only 12 months imprisonment, the Georgia legislature is caught up in ugly name calling about Wilson's case.  Here's are some of the details from this news article:

A war of words has erupted over the highly publicized case of a Douglas County teenager sentenced to 10 years in prison for having consensual sex with a minor. Georgia Senate President Pro Tempore Eric Johnson (R-Savannah) released a column Sunday about the case of Genarlow Wilson, the day after he figured prominently in a CNN piece about Wilson....

Johnson, in an interview Monday, said Wilson is "choosing martyrdom," rather than take a plea deal.  Johnson dismissed [Wilson lawyer] Bernstein's criticisms.  "She's hired a publicist, got a Web site and is raising money," Johnson said of Bernstein. "As long as she can use any — whether it's the bill, or whether it's a press conference or whether it's an op-ed — to generate publicity and go on national TV, she will.  She is trying this case in the media because she lost it in court."

February 20, 2007 in Examples of "over-punishment" | Permalink | Comments (3) | TrackBack

Saturday, February 17, 2007

CNN with additional coverage of Genarlow Wilson case

I am told by a knowledgeable source that CNN is back on the Genarlow Wilson case (background here and here).  I was pleased to see all the attention this remrkable case received last month (including from CNN), but it seemed criticisms had started to die down.  Here's hoping a new round of coverage will bring a new hope for justice for Wilson.

Some recent related posts:

February 17, 2007 in Examples of "over-punishment" | Permalink | Comments (0) | TrackBack

Tuesday, February 13, 2007

Still more buzzing about border agents sentence

As the buzzing continues about border agents case (background here and here), I am pleased to see a more refined focus on the exercise of prosecutorial discretion and the severity of the sentences received by Border Patrol Agents Jose Alonso Compean and Ignacio Ramos. 

As noted in this recent post, Senator Dianne Feinstein last week wrote various public letters (available here) in which she expressed her concern that "the sentences in this case are too extreme."  It is heartening to see Senator Feinstein asking AG Alberto Gonzales tough questions about the the exercise of prosecutorial discretion and the pursuit of enhanced sentences in this case.

Similarly, Debra Saunders now has this commentary in which she zeroes in on the sentencing unfairness that resulted from how prosecutorial discretion was exercised:

[U.S. Attorney Johnny] Sutton can point to inconsistencies in Ramos' and Compean's stories.  He is right to argue that law enforcement officials cannot be allowed to shoot at unarmed suspects or lie about what they do. 

For his part, Mr. Sutton offered both agents a plea bargain with a one-year sentence.  But at trial, the U.S. Probation Office [sic] sought 20-year sentences.  Prosecutors can argue that terms are stiff because of federal mandatory minimum sentences for crimes committed with guns, but it was Mr. Sutton's choice to throw the book at the agents -- charging them for assault with a dangerous weapon, obstructing justice, lying about the incident and willfully violating Aldrete-Davila's Fourth Amendment right to be free from illegal seizure -- as well attempted murder, for which they were acquitted.  That's a long sheet for acts begun in the heat of pursuit.

Some recent related posts:

February 13, 2007 in Examples of "over-punishment" | Permalink | Comments (5) | TrackBack

Thoughtful reflection on Skilling sentence

Thanks to Stuart Taylor's amazing commentary in The National Journal yesterday (discussed here), I discovered that Frank Bowman has this terrific piece in The American Lawyer providing reflections on the federal sentencing of Jeff Skilling and other white-collar offenders.  Frank's piece is entitled "Sacrificial Felon: Life sentences for marquee white-collar criminals don't make sense."  Here is one of many notable insights:

[T]he fate of [Skilling, Bernie Ebbers and John Rigas] leaves me certain of one fact:  The rules governing high-end federal white-collar sentences are now completely untethered from both criminal law theory and simple common sense.

February 13, 2007 in Examples of "over-punishment" | Permalink | Comments (0) | TrackBack