Yesterday, I was raptly following the sentencing of Matthew Keys as it was live-tweeted by Sarah Jeong. If you haven’t read the dozens of articles about it today, the short story is Mr. Keys was sentenced to 2 years in federal prison, for sharing his login info online — info...
Interesting concurring opinion by Posner the other day in U.S. v. Craig. Basically, the defendant pled to four counts of creating child porn — which he created in an awful and horrifying way. He could have gotten 30 years for each count, but the judge gave him 50 (30 on...
Google analytics is a great tool. Among other things, it shows the search engine queries people use to find this blog. Which is a good way of figuring out who its audience is, and what they need to know. The queries aren’t as entertaining as they are over at Popehat,...
The January 30 issue of the New Yorker has an intriguing article by Adam Gopnik, “The Caging of America: Why do we lock up so many people?” Perhaps we’ve grown a bit cynical, but we expected yet another inane media whine about increasing rates of imprisonment “despite” fewer crimes being...
Bill Otis, a former AUSA and now an adjunct at Georgetown Law, had a piece earlier this month in the Federalist Society’s magazine Engage titled “The Slow, Sad Swoon of the Sentencing Suggestions.” His article opens with the sentence “The Guidelines are a lost cause.” We were in total agreement...
Too many people are in jail. The rate of incarceration is just going up and up. Is it doing any good? If you look at the two graphs above, you’ll see that the prison population in the United States has soared, while the amount of violent crime has plummeted. The...
We rag on Attorney General Eric Holder from time to time on this blog. For good reason — he’s been something of an idiot on profiling, miranda, terrorism, etc.. But today he did something praiseworthy, and we’d be out of line if we didn’t say so. Last August, Obama...
It’s rare that we agree with a NY Times editorial. Yesterday, we came close. In a blurb titled “Recidivism’s High Cost and a Way to Cut It,” the editors said one solution to the high cost of imprisoning repeat offenders would be to adopt what Oregon’s doing, in letting...
Tonight, we attended a panel discussion on federal sentencing that was actually worth commenting on. Usually, these things are either so basic or insubstantial as to be a waste of time. But this one had a few choice moments we’d thought we’d share with our readers.
The panelists included John Conyers (Chairman of the House judiciary committee), William Sessions (Chair of the U.S. Sentencing Commission and Chief Judge of the District of Vermont), Jonathan Wroblewski (policy director for the DOJ, among other things), Alan Vinegrad (former US Atty for the EDNY and now a white-collar partner at Covington), Tony Ricco (mainstay of the federal defense bar), and Rachel Barkow (NYU professor, didn’t speak much). It was moderated by Judge John Gleeson of the EDNY, and we recognized in the standing-room-only audience a number of distinguished jurists and counsel.
Everyone seems to agree that the Guidelines are in need of a major overhaul. As Judge Gleeson put it, “when even the prosecutors are saying that sentences are too severe… the sentences are too severe.”
But not everyone agrees on what changes ought to be made, how drastic the changes ought to be, or even what’s causing the problems in federal sentencing.
Here’s the take-away: Everyone knows what the right thing to do is. Judges want to do the right thing, regardless of what the Guidelines say. The DOJ forces its prosecutors to do what the Guidelines say, regardless of what they think is just. Congress is incapable of doing the right thing, in its efforts to pander and blame rather than solve. And the Sentencing Commission is afraid to be independent of Congress, preferring instead to make baby steps toward eventually maybe doing the right thing.
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For as long as we’ve been practicing law, everyone has been complaining bitterly about …
The Supreme Court today decided Graham v. Florida, ruling 6-3 that it violates the Eighth Amendment’s Cruel and Unusual Punishment clause to sentence a juvenile offender to life in prison without parole, for a non-homicide crime. This is a hugely significant decision, creating a new precedent in sentencing law (and also forcing Florida to make some law of its own, as it did away with parole a while back).
(Companion case Sullivan v. Florida was dismissed, as certiorari was improvidently granted in light of the Graham decision.)
The opinions are a stirring read. Chief Justice Roberts, in the majority, was in strong opposition against his fellow conservatives Alito, Thomas and Scalia, who dissented. During oral argument, it was clear to observers that Roberts wanted to bring them into the fold and get a unanimous decision that youth deserves a second chance at some point.
Roberts couldn’t get them to agree, which must have been a disappointment to the Chief, who openly aspires to as much unanimity and consensus as possible on his Court. It moved him enough to write a scathing concurring opinion, taking to task the arguments of his conservative brethren.
Kennedy doesn’t let any of the conflict or disappointment show in his majority opinion, which is a balanced and philosophical treatise of the evolution of Cruel and Unusual Punishment law, and well worth reading.
(Had it been up to us, we’d have preferred for the Chief to write an opinion that stays above the fray, and leave it to others to write the criticisms of the dissents. That would free it of any taint of personal feeling.)
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This was really an unexplored territory in American jurisprudence. The Supreme Court has long carved out exceptional …
The Supreme Court is back in session, well rested from a three-week vacation. (We don’t remember the last time we took three weeks off. Wonder what that must be like.) They opened the day this morning with two interesting per curiam decisions. The first, Wilkins v. Gaddy, is about what...
Last week, we argued that capital punishment as practiced in America does not work, because it takes too long. The appellate process can take decades, during which time the convict remains on death row, the victims get no closure, and any deterrent effect gets completely washed out. In fact, the...
Without much media fanfare, the Supreme Court has already decided two capital-punishment cases this month. The first, Bobby v. Van Hook, came down on the 9th, and dealt with a case from early 1985. Nearly 25 years ago, Van Hook went looking for someone to rob, trolled a Cincinnati gay...
On Wednesday, President Barack Obama signed into law the 2010 National Defense Authorization Act. As usual, the Act included provisions that had nothing whatsoever to do with National Defense Authorization. And one of the tacked-on provisions was the much-debated Hate Crimes Prevention Act. We wrote about this back on May...
The D.C. Circuit weighed in today on an important issue that has split the circuits evenly: whether a sentencing court can give extra time in prison, to increase the opportunity for rehabilitation of the prisoner. Some circuits say it’s fine, some say it’s prohibited by law. -=-=-=- 18 U.S.C. §...
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