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Author: Laura Appleman

11

Genarlow Wilson and the 8th Amendment

As has been widely reported today, Genarlow Wilson, the 17-year old black male who was sentenced to 10 years for aggravated child molestation after having consensual oral sex with a 15-year old, was freed on an 8th Amendment claim: cruel and unusual punishment.

To those of us immersed in the sentencing world, this is another interesting example of how the understanding of “cruel and unusual punishment” has expanded in the past several years. As every defense attorney knows, 8th Amendment claims are usually a last-ditch effort, since they are so unlikely to be successful. And yet the last five years have illustrated quite the opposite.

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Liveblogging Law School

blogging.jpgThanks to Dan and the rest of the Concurring Opinion crew for hosting me here this month! I’ll be posting on such varied topics as juries, sentencing, legal history, teaching 1Ls, and–to steal a page from co-guest-blogger Jennifer Collins–celebrity malfeasance and misbehavior. It’s a great time to be a crim prof, that’s for sure.

But today I want to talk about student blogging, specifically law student blogs. I teach Criminal Law to first years, with all the excitement and agitas that can bring (plus side: excited, focused students. minus side: terrified rookies who’ve never read a case before). About three weeks or so into the semester, one of my students told me he had started a law school blog, and wanted to feature me as his first interview with a professor. Flattered, I obliged: here’s my interview.

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3

Farewell, semester

Tomorrow marks both the end of our semester and the end of my guest-blogging stint, so I thought I’d write one last post as farewell. I’ve enjoyed my time here and hope you have too.

Anyway, for my final post I wanted to muse a bit on what the summer break really means. Of course it’s a welcome break from the hard work of teaching, teaching prep, meeting with students, serving on committees, going to events, etc. And for most academics, the summer is the primary chunk of time in which to write. But I think the summer break has an important expressive and psychological value as well.

Being a legal academic requires living simultaneously in two very different worlds. During the school year, when everything’s at full swing, the job of a law professor isn’t that different from any other job. Sure, we have more freedom, but most of us have to be at the law school at scheduled times, have lots of meetings, and participate in an external work community (albeit one composed of eccentrics). Your days have a rhythm and a set pattern to them, and you function as a public person.

During the summer, however, the legal academic reverts to the classic definition of a scholar, someone who focuses primarily on the intensely internal world of thinking and writing. Perhaps not quite a monk in his cell, but a time of deep contemplation, an immersion into the life of the mind. To get to this state, I find, is no easy task, because it requires the ability to achieve an inner silence–a stillness within.

Pascal famously observed that “[m]ost of our miseries do stem from the fact that we have lost sight of the importance of being silent, for even a short period, every day of our lives.” As I continue along my academic path, Pascal’s observation becomes ever more true. How often is it that any of us can obtain the interior quietude that is required for serious thinking and true scholarship?

As we finish up our semesters and embark upon the summer, I hope we can all find the inward concentration and contemplation that we all need. Thanks for listening.

0

The Demise of Three Strikes in New York?

prison_bars.jpgWhen discussing modern sentencing, “three-strikes” laws ( laws which enhance sentences based on prior crimes and criminal history) are always a hot topic. Although California can lay claim to the most infamous three-strike law, New York has one as well–a law that was successfully challenged under Blakely last week in Portalatin v. Graham, No. 06 CV 5002 (EDNY Mar. 22, 2007) (hat tip Doug Berman).

This is big news for New York’s criminal justice system, particularly if the decision is affirmed on appeal. If upheld, Portalatin could spell the demise of judicial discretion in the application of NY’s three-strike law…

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Whither the Humanities?

sphere1.jpgHaving just returned from the ASLCH conference this past weekend, the role of humanities in the world of the law has been greatly on my mind.

It was a great conference–I presented on a double panel entitled “Reconfiguring the Language of Rights,” with Rose Cuison Villazor, Olati Johnson, Serena Mayeri, Melissa Murray, Frank Ravitch, Patricia Seith and Aric Short–and it was fascinating to be immersed in the world of the humanities again, something I have not much focused on since graduate school.

But the conference did make me wonder: will the role of humanities in the law ever be more than its current “Law and __” ghetto? In other words, will Law and Humanities ever be mainstreamed like Law and Economics? Should it be? I ponder this below….

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4

Raich and Medical Marijuana

pot.jpgFresh from the 9th Circuit presses: A three-judge panel affirmed the denial of Angel Raich ‘s (name plaintiff in Gonzales v. Raich) motion for declaratory and injunctive relief from the enforcement of the Controlled Substance Act . Opinion here.

The court argued that although Raich’s situation did seem to satisfy all prongs of a necessity defense, the necessity defense does not provide proper grounds for injunctive relief. In a footnote, however, the court noted that Raich might be more successful obtaining relief for “pre-conviction harm” on a common-law necessity claim. The court also rejected Raich’s substantive due process claim, and declined to reach her “plain reading” argument of the statute as it was not rasied below.

Unsurprisingly, the LA Times has described the decision as “Dying Woman Loses Medical Marijuana Appeal,” and quotes a tearful Raich insisting that she would “not let them kill me.” Now, I’m all for making the law as interesting and accessible as possible, but this seems a bit much. Didn’t the editors even bother to read the opinion before posting the AP report?

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Two Criminal Law Conferences

gavels.jpgFor those of you interested in either white-collar crime or prisoner re-entry, March is your lucky month! First, on Thursday, March 15 (i.e., THIS Thursday), Georgetown Law School, in conjunction with the American Criminal Law Review, will be hosting a symposium on “Corporate Criminality: Legal, Ethical, and Managerial Implications.” Former Att’y General Dick Thornburgh will be giving the plenary address, Ed Meese opens and closes the conference, and Conglomerate superstar Christine Hurt will be discussing Regulation of Criminalization–so white collar crime wonks, this is the place to be.

A few weeks later, from March 30th- April 1st, Harvard Law School’s Criminal Justice Institute will be hosting a conference on prisoner re-entry entitled, “Rethinking Re-Entry: Confronting Perpetual Punishment.” The conference focus is on pursuing remedies that “reduce disparities and promote reintegration into communities for those who are involved in the criminal justice system.” This is a “must-attend” for anyone who is interested in sentencing….

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Hidden Sentencing in Blakely’s Wake

easternstate.jpgWhen we think of criminal punishment, we usually think about prison sentences–”hard time” or “going upstate.” But what about other types of sentences, the ones that are imposed in addition to prison, or in lieu of it? These kinds of proceedings, sometimes known as hidden sentencing, can include parole, probation, post-release supervision or restitution. So should they count as punishment too? If so, does the Supreme Court’s recent sentencing jurisprudence–Blakely, Booker, et. al–apply to these proceedings as well?

Conveniently enough, the answer to ALL* of these fascinating questions can be found in my latest article, currently posted on SSRN and being processed at a law review office near you :

Blakely and its recent progeny have focused attention on a broad swath of fact-finding in sentencing decisions. In doing so, however, they have raised a number of complex questions about how fact-finding operates in the front- and back-ends of sentencing – what I call ancillary, or hidden, sentencing proceedings. These ancillary sentencing proceedings have been almost entirely neglected in post-Blakely case law and scholarship.

Accordingly, this Article re-evaluates a variety of ancillary sentencing proceedings (including pre-sentence reports, prior offender statutes, probation, parole, post-release supervision and restitution) under Blakely. As part of this re-evaluation, I also locate a new paradigm of retributive justice underpinning the Court’s recent sentencing decisions. Specifically, I contend that a theory of limited expressive retribution best suits the Court’s new sentencing jurisprudence, because it encompasses both the historical antecedents of the 6th Amendment jury right and modern ideals of punishment. My end goal is to illustrate how Blakely’s animating principles and theoretical underpinnings might reshape the fate of hidden sentencing.

*OK, maybe not all. If any one person or entity has ALL the answers about Blakely and hidden sentencing, it would probably be the Sentencing and Corrections Policy Project at the Stanford Criminal Justice Center, the Vera Institute’s Center on Corrections and Sentencing, or Doug Berman’s musings at Sentencing Law and Policy. Check ‘em out!

1

Reinvigorating the Jury

William Revels - Counsel in Trial by Jury.jpg

I wanted to use my first post to discuss a subject near and dear to my heart: the 6th Amendment jury right. As evidenced by today’s posts by Scott Moss and Dave Hoffman, juries have been front and center lately. And when we think about famous criminal cases from the past, we always go to the sturm und drung of Sacco & Venzetti, Alger Hiss, O.J. and Enron–our national psyche writ large on the courthouse steps.

Putting such highly publicized trials aside, however, what role do juries really play in our current criminal justice system ? If roughly 93-96% of all felonies in state and federal systems are resolved through guilty pleas rather than trials, are juries just antiquated relics of a bygone era? Or has the Supreme Court’s recent sentencing jurisprudence reinvigorated the 6th Amendment jury right–what’s been called the Blakely revolution?

I don’t think there are any easy answers to this. I’m deeply disturbed by the way our criminal justice system relies on an inherently coercive tool to better “dispose” of criminal offenders. But as a former appellate public defender, I understand why we need such a tool to manage the flood of criminal indictments that swamp our courts, prosecutors and defense attorneys each year.

If anyone has any easy solutions, I’d love to hear them! If not, I’ll be exploring this particular conundrum for the next few weeks, focusing on issues of sentencing, plea bargains, and bench trials. And if you’re particularly lucky, I’ll throw in some tips gleaned from my former clients on the mean streets of New York….

Finally, thanks to Dan Solove and Dan Filler for their kind introduction and invitation to guest-blog.