A Massachussetts federal judge has declared the Federal Sentencing Guidelines unconstitutional:

In a scathing criticism of the system used to punish federal crimes, a judge on Monday called the government's sentencing guidelines unconstitutional, saying they unfairly limit the authority of judges. In a series of drug cases, U.S. District Judge William Young said the guidelines put too much power in the hands of prosecutors and give judges too little discretion in sentencing.

....In his ruling, Young said he believes the sentences handed down to five defendants were too harsh and violated their constitutional right to due process. Young asked the 1st U.S. Circuit Court of Appeals to throw out the sentences and send the cases back for new sentencing hearings.

Judge Young is not the only Judge to harbor such beliefs:

....many judges have lamented the stringent nature of the guidelines, and some judges have refused to take criminal cases because they object so strenuously to the rules."What judges have perhaps most strongly detested has been exactly what Judge Young says here, and that is that the Department of Justice acts, in a manner of speaking, as both prosecutor and executioner," Yas said.

As we point out here, the Guidelines came in under former President Ronald Reagan ...as did mandatory minimum sentences, laws allowing the death penalty for drug kingpins and the Bail Reform Act, which allowed Judges to deny bail for many drug defendants at the request of prosecutors.

Update: Judge Young's sentencing opinion describing "the reality of criminal sentencing under the Guidelines" (op.p.59) and holding that "the Guidelines system violates the constitutional rules announced in
Apprendi v. New Jersey and Ring v. Arizona" (id.) is 176 pages in length and can be found here. If that fails, go to the district court website, click on case information, opinions, recent opinions and then United States v. Green.

by TChris

Privacy -- freedom from unwarranted governmental intrusion into our lives -- is one of the most important values underlying the U.S. Constitution. That value took a big hit today as the Supreme Court ruled 5-4 that an individual can be criminally prosecuted for refusing to reveal his or her identity to the police upon demand -- at least if the demanding officer has reason to suspect that criminal mischief is afoot.

The justices upheld a Nevada cattle rancher's misdemeanor conviction. He was arrested after he told a deputy that he didn't have to reveal his name or show an ID during an encounter on a rural road in 2000.

The ruling arose in the context of a Terry stop -- a (supposedly brief) detention for the purpose of investigating suspected criminal behavior. The police are required to have an objectively reasonable suspicion of wrongdoing before making a Terry stop, but experience shows that officers conjure up all sorts of reasons for demanding that individuals halt and answer their questions. The detained persons have the right not to incriminate themselves, but as of today, they don't have the right to refuse to identify themselves -- except in those states that have independently protected that right as a matter of state law.

Writing for the majority, Justice Kennedy said that a requirement to identify oneself is insignificant in the context of a Terry stop. Not so.

Marc Rotenberg, president of the Electronic Privacy Information Center, said America is different 36 years after the Terry decision. "In a modern era, when the police get your identification, they are getting an extraordinary look at your private life." He said the ruling for Nevada "opens the door to what could become a routine fishing expedition among government databases," after police stop innocent people.

Will this decision be the precursor to a national requirement that we all carry identity papers, producable upon demand by law enforcement officers? Look for the more extreme members of Congress to use this decision as a justification for "identity checks" as a way to protect us from terrorism -- at the expense of our national values.

The Supreme Court has ruled that for now, the words "one nation under God" will remain in the Pledge of Allegiance. The decision was based on the father's lack of standing to assert the rights of his daughter because he didn't have custody of her and therefore was not her legal representative:

The court said the atheist could not sue to ban the pledge from his daughter's school and others because he did not have legal authority to speak for her. The father, Michael Newdow, is in a protracted custody fight with the girl's mother. He does not have sufficient custody of the child to qualify as her legal representative, eight members of the court said. Justice Antonin Scalia did not participate in the case.

by TChris

Fawaz Mohammed Damra is scheduled to go to trial in Akron next week on charges of obtaining U.S. citizenship by providing false information. Federal authorities claim that Damra failed to reveal his connections with the Palestinian Islamic Jihad when he applied for citizenship. But thanks to the wrongdoing of federal agents who searched his house, the government won't be able to use all of the evidence that it intended to introduce against Damra.

FBI agents searched the home after the Palestinian-born imam was arrested there. Agents seized a computer, copies of sermons and political speeches, the manifesto of the Palestinian Islamic Jihad and stacks of financial records.

Damra's wife, Nasreen, was instructed to go to the basement during the arrest, apparently because she was upset, and the "uninvited lingering on the premises" by the agents after the arrest meant the search was unreasonable and therefore illegal, [U.S. District Court Judge James] Gwin ruled. "The agents' plan all along was apparently to prevent Nasreen Damra from knowing whether she had the right to ask them to leave," the judge said in a 16-page ruling.

The prosecution had intended to use the illegally obtained manifesto as evidence at Damra's trial, no doubt hoping to inflame jury prejudice by associating Damra with those views.

The DC Circuit Court of Appeals has thrown out a $959 million judgment in favor of Americans tortured while POW's in Iraq during the first Gulf War:

An appeals court panel threw out a $959 million verdict Friday for U.S. prisoners of war who say they were tortured by the Iraqi military during the 1991 Gulf War, ruling Congress never authorized such lawsuits against foreign governments.

Background here.

Tuesday, the Supreme Court will begin issuing its final month of opinions for the term. Some are critical, including three on Bush's anti-terror policies:

The court will hand down more than two dozen decisions in June, including whether the words "under God" should remain in the Pledge of Allegiance, whether the Internet should remain free of criminal restrictions and whether pedestrians must identify themselves when a police officer asks them to.

But most legal scholars were focused on the series of cases that test the president's powers to hold terrorism suspects. In three cases, the justices will decide whether the military can hold "enemy combatants" — both foreign and domestic — without filing charges or giving them a hearing.

Predictions, anyone?

Received by email:

Read 9th Circuit Judge Alex Kozinski's recent dissent in US v. Navarro-Vargas, No. 02-50663 (9th Cir. May 4, 2004), a case involving the constitutionality, under the Indictment Clause, of a standard grand jury instruction directing the grand jurors not to consider "the wisdom of laws enacted by Congress." Arguing that such local community review of the wisdom and utility of criminal legislation is a core function of the grand jury, Judge Kozinski goes on to assert:

This kind of community judgment strikes me as particularly important in federal prosecutions, and not merely because Washington is usually much farther away geographically than the state capital. State prosecutors are elected locally and must stand for re-election on a regular basis. They will, of necessity, take the local community’s values into account. United States Attorneys, by contrast, are appointed by the President and never have to stand for election. In their daily operations, they are supervised by the Department of Justice, whose prosecutorial policies they implement. Except for the tradition of senatorial courtesy, which gives the state’s senators some say in who will be the United States Attorney in a particular district, there is very little state control, and almost no local control, over federal prosecutors.

by TChris

While ruling that suspects in criminal cases don't have a constitional right to have the police record their statements, the New Jersey Supreme Court created a committee to consider whether the court should require judges to exclude statements from evidence that were produced by unrecorded interrogations.

"The proverbial time has arrived for this court to evaluate fully the protections that electronic (recording) affords to both the state and to criminal defendants," the court said in a 5-1 decision written by Justice Jaynee LaVecchia. It stressed the judiciary bears the responsibility to guarantee "the proper administration of ... criminal justice."

Recording interrogations -- a practice required in only three states -- has obvious benefits for both prosecutors and defendants. Recordings make it difficult for a defendant to claim "I never said that" or to argue that a confession was coerced. By the same token, they prevent the police from placing their own spin on the defendant's statement, and they discourage police from using coercive interrogation tactics.

New Jersey's Attorney General believes that "New Jersey will develop policies and procedures that will stand as a model for the nation." If so, it can't happen quickly enough.

Marcus Dixon, the black high school honor student serving a ten year sentence in a Georgia prison for consensual sex with his nearly-16-year-old white girlfriend, has had his conviction reversed by the Georgia Supreme Court.

The state's highest court ruled 18-year-old Marcus Dixon should have been prosecuted just on the lesser charge of misdemeanor statutory rape rather than aggravated child molestation for having sex with a 15-year-old in February 2003. Dixon had claimed he was targeted because he is black and had sex with a white girl. His case drew protests from the NAACP.

Dixon was acquitted on felony rape charges but found guilty of aggravated child molestation, which comes with a mandatory decade-long sentence, as well as statutory rape. Monday's ruling lets the statutory rape conviction, which carries a maximum sentence of one year and a $1,000 fine, stand.

Dixon was 18 at the time of the offense with a 3.96 grade point average. His football scholarship to attend Vanderbilt University was revoked after his arrest. His case drew national publicity and strong criticism from the NAACP. Dixon is African-American; his victim is white.

More details are available in this article, Was it a Lynching or Justice?

[comments now closed]

Delbert Meeks, 52, had lived on the streets for the past year. He has AIDS. His last felony, for a robbery, was in 1991. In 2000, he failed to register as a sex offender. This week, the California Supreme Court upheld his 27 year to life sentence on the failure to register charge, because it was his third strike.

Dissenting Justice Richard Sims was outraged. "What has become of our society?'' he asked in his dissent. "Why has 'compassion' become a dirty word in the law? I think that some years from now, law professors and law students will read this case and will ask, 'What on earth were they thinking?' "

Meeks' lawyer, Robert Wayne Gehring, said Friday he planned to appeal. "This offense did not involve any violence, damage or theft of property'' and would not have been charged as a third strike in some counties, such as San Francisco and Los Angeles, he said.

California's three-strikes law is the toughest in the nation:

More than half the 7,200 inmates now serving 25 to life under the law were convicted of nonviolent crimes, including burglary, drug offenses and shoplifting, as their third strike. The U.S. Supreme Court ruled last year that a 50-to-life sentence for a Southern California man convicted of two thefts of videotapes, after a long series of nonviolent offenses, did not violate the constitutional ban on cruel and unusual punishment.

California voters likely will have a chance to change the law this November. The proposed Amendment would require that the triggering offense for a three-strikes sentence to be a serious or violent felony.

As TChris wrote here:

One quarter of California prisoners are serving life terms under the three-strikes law, at a cost so far of about $8.1 billion. More than half that amount was spent to warehouse offenders whose third strike was not a violent crime. So the law is expensive, it wastes prison resources on people who don't deserve life sentences, and it seems to be implemented in a racially discriminatory manner. California, is that what you intended?

For more on three-strikes abuses, visit FACTS.

A federal judge in California has ruled Ashcroft & Co. cannot prosecute medical marijuana clubs that provide pot to sick patients:

A judge on Wednesday ordered the federal government not to raid or prosecute a California group that grows and distributes marijuana for its sick members.The decision from U.S. District Judge Jeremy Fogel in San Jose was the first interpretation of an appeals court's December ruling that federal prosecutions of medical marijuana users are unconstitutional if the pot isn't sold, transported across state lines or used for non-medicinal purposes. Nine states, including California, allow medical marijuana use, but the Justice Department contends that federal drug laws take precedence.

Fogel ruled that the federal government cannot raid or prosecute the 250 members of the Wo/Men's Alliance for Medical Marijuana, which sued the government after the Drug Enforcement Administration in 2002 raided its Santa Cruz County growing operation and seized 167 marijuana plants....The marijuana group asked Fogel to issue the injunction after the 9th U.S. Circuit Court of Appeals in December ordered the federal government not to prosecute a sick Oakland woman who smoked marijuana with a doctor's recommendation. A 1996 California law allows people to grow, smoke or obtain marijuana for medical needs with a doctor's recommendation.

States with similar laws: Alaska, Arizona, Colorado, Hawaii, Maine, Nevada, Oregon and Washington. All except Colorado and Maine are in the 9th Circuit.

Cheers for the 9th Circuit Court of Appeals for throwing out a 25 year to life sentence for a man whose third strike was a shoplifting offense. The Court said the sentence was cruel and unusual punishment.

Ruling 2-1, a panel of the 9th U.S. Circuit Court of Appeals said the 25-year term handed to a California man convicted of stealing a $199 VCR violated the Eighth Amendment constitutional ban on cruel-and-unusual punishment. The appellate court said the punishment did not fit the crime even though the Supreme Court last year upheld the same sentences for two California shoplifters. The appeals court said the life sentence was unjust and more severe than a sentence for "murder, manslaughter or rape." The San Francisco-based appeals court said the Supreme Court's precedent did not apply to every third-strike defendant convicted of a felony.