federal criminal issues
Thoughts on the Genarlow Wilson decision
Oct 26th
In the end, the Georgia Supreme Court achieved the correct result. In a 4-3 opinion [pdf - make sure you read both the majority and the dissent] issued today, it found Genarlow Wilson’s 10 year sentence to be “cruel and unusual punishment” for the crime of which he was convicted. However, I’m not sure this majority opinion is that sound or has any precedential value whatsoever.
Specifically, I’m not sure that its distinguishment of Widner [pdf] is appropriate. The Court says that the main reason Widner is distinguishable (in Widner, the defendant was 18 and the “victim” was a few days shy of 14) is because the legislative change that altered the punishment for Genarlow did not do so for Widner.
What troubles me about this is that the Court seems to take its cues on the “evolving standard of decency” from legislative acts. While it expressly disavows that contention, nothing else in the opinion seems to support that notion. The court is essentially saying that a 10 year sentence for consensual oral sex between a 17 year old and a 15 year old is “cruel and unusual”, but it is okay if the actors are 18 and 14, because the legislature didn’t want to change that.
The Court doesn’t provide much by way of support for the evolving standard argument. It cites statutes from sister states that don’t punish the same conduct to this extent, but as far as I could see, there was no discussion of when those statutes were enacted or how long they were in effect. It then discusses Georgia statutes for seemingly far worse crimes but with far less punishment, but I don’t think it’s very instructive to compare manslaughter to consensual oral sex. Could that argument then be applied to larcenies as well?
The Court also dismisses that dissent’s contention that this opinion would have implications for several other defendants. It emphasizes that this is a very limited factual scenario they are dealing with.
It seems to me to be a very result oriented decision (and they got the result right), but whether it would stand up to SCOTUS scrutiny is beyond me. Thankfully, the AG seems willing to accept the Court’s decision and doesn’t seem like he will appeal.
Other blog coverage: from SL & P (here and here) and MUCH more here (and in the comments), Volokh, ConcurringOpinions and OfCounsel. My prior coverage :
Second Circuit on Crawford
Oct 25th
The Second Circuit issued an interesting decision recently. I’ll let the Second Circuit Blog do the talking here:
In this curious but very troubling case, the court seems to have concluded, sub silentio, that Crawford trumps Bruton.
Obviously, [the defendant's] Confrontation Clause claim raises Bruton issues; indeed, this is the classic Bruton situation – the out-of-court statement of one defendant is used against a co-defendant. But here, the court never even got to Bruton. It held that Bobby’s out of court remarks were not “testimonial” under Crawford, and thus “our Confrontation Clause inquiry is at an end.” In other words, the court denied the Bruton claim without even mentioning Bruton.
This case, if it stands, would limit Bruton to cases where the co-defendant’s out-of-court statement was taken by the police, or is otherwise “testimonial” for some reason. The court might well be right – although only the Supremes will tell us for sure. But one would have hoped that if the court really wanted to take on such a radical and new issue (as of this writing, no other Circuit has so held), it would come out and say so directly, rather than leaving the entire bar to guess. Let’s that hope the [co-defendants] file cert petitions.
I don’t think the opinion is publicly available yet. Maybe they’re redacting something. Here it is.
4th Circuit’s grant in Al-Marri
Jun 12th
Of course, the other big news yesterday was the 4th Circuit’s (!) grant of a habeas corpus petition in Al-Marri v. Wright [pdf]. The basics:
In a sharp rebuke to the Bush administration’s detention policies, a federal appeals court ruled Monday that the government cannot continue to hold a U.S. resident — a suspected Al Qaeda sleeper agent arrested in Peoria in late 2001 — without filing charges against him.
The 2-1 decision by a 4th U.S. Circuit Court of Appeals panel in Richmond, Va., means the government must release Ali Saleh Kahlah al-Marri, a legal U.S. resident, from military custody and either charge him in the criminal justice system, deport him or free him.
The blogosphere has plenty of coverage on this and I will be back later with more, once I’ve had a chance to digest the opinion. From the little I’ve read since yesterday, there are some choice quotes.
Here is Scotusblog’s fantastic analysis.
“The President cannot eliminate constitutional protections with the stroke of a pen by proclaiming a civilian, even a criminal civilian, an enemy combatant subject to indefinite military detention,” the Court said.
The Fourth Circuit panel majority ruled that Congress has not taken away the legal right of Ali Saleh Kahlah al-Marri to challenge his detention, thus limiting the reach of the Military Commissions Act’s court-stripping provisions. “As an alien captured and detained within the United States,” the Court said, “he has a right to habeas corpus protected by the Constitution’s Suspension Clause.” The Court said, though, that it was avoiding “difficult constitutional questions” about the MCA’s court-stripping provision, finding that it could interpret the MCA to stay clear of those issues. It found that the MCA withdraws habeas only for those properly detained as enemy combatants, and it ruled that al-Marri’s detention did not meet that test because of the lack of presidential authority.
Here is Volokh’s coverage.
The Government will seek en banc review by a full panel of the 4th Circuit.
Sensenbrenner’s Snitch-or-Go-to-Jail Bill
May 16th
I don’t normally post about national politics or federal legislation, but I happened to see this post at TalkLeft about Rep. Sensenbrenner’s proposed drug bill. This is very very scary. You know me, I don’t often employ hyperbole, so check it out. An excerpt:
How about three strikes for drug offenders – life no parole for a
third drug or violent felony. Remember that in most states, simple
possession of even a gram of cocaine, meth, lsd or heroin is a felony.
Federally, growing even one marijuana plant is a felony. Relatively
small amounts of mariuana offenses are still a felony in many states.More: Your 21 year old gives a joint his 17 year old sister. He gets
a 10 year mandatory minimum sentence – for a first violation. With a
prior felony drug conviction, it’s life in prison, no parole.The way I read the bill, under the section called "Drug trafficking in
the presence of children," this is a possible scenario: You run out of
your Ambien or your pain pills. You ask a friend to bring one over. If
you live with kids, even if they aren’t home, it’s a ten year mandatory
minimum. Now reverse it. Your friend is out of pills, you bring her
one. She has kids at home. She gets a mandatory ten year sentence, you
get away with five.
Damn.
Prof. Berman also has some views and links on it.
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