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.

First, the Supreme Court decided in Atkins that the death penalty was cruel and unusual punishment for the mentally [...]]]> 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.

First, the Supreme Court decided in Atkins that the death penalty was cruel and unusual punishment for the mentally retarded, under an “evolving standard of decency.” More recently, the Supreme Court granted cert. in Baze to determine whether lethal injection is “cruel and unusual punishment” in implementing the death penalty. As a result, a variety of states have placed a moratorium on lethal injection and the death penalty, at least until Baze is decided.

All of this, plus an intriguing new article on the original meaning of the 8th Amendment, seems to have breathed new life into this rather moribund area.

But is there a danger here? 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?

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 [...]]]> Thanks 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.

All well and good. Then my student managed to snag Judge Posner as an interviewee, and this information, along with a link to the blog, was sent around the law school, including to all lawfaculty. By the time the link was circulated, however, my student had started his next project: liveblogging Torts. Here’s a sample of how it went.

When some of our faculty realized my student was liveblogging one of his classes, this sparked a discussion among students and faculty about the appropriateness of doing so. [I will note that the student only liveblogs when he has permission from the professor.] But that doesn’t really answer the host of interesting questions that are raised by this practice. For example, Should students be allowed to liveblog in class? Does posting your classmates’ comments on the blog for everyone to see negatively affect their learning experiences ? Will this make more students pay attention, because they are commenting on the blog during class, or does it distract? Is this a new and exciting way of teaching and learning for first-years? Or is it yet another way that the nefarious internet is taking over our lives?

It seems that my student will be continuing the live-blogging experiment for a while, so I’m curious to see what happens. I don’t think I’ll be changing my class rules forbidding in-class internet usage for ILs for the time being, however.

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 [...]]]> 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.

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…

So what does Judge Gleason’s excellent opinion say? Clocking in at 41 pages, it is chock-full of goodies, but my particular interest here is [...]]]> When 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…

So what does Judge Gleason’s excellent opinion say? Clocking in at 41 pages, it is chock-full of goodies, but my particular interest here is its application of Blakely to NY’s discretionary persistent felony offender statute, P.L. 70.10.

Under P.L. 70.10, a New York trial court is authorized—but not required—to sentence an offender with two prior felony convictions to a much longer incarceration period than would normally be permitted. The determination of whether the offender is eligible for the “persistent felony offender” status is left to the judge alone. As I argue in my forthcoming Ohio State article, however, this kind of judicial fact-finding seems to flatly violate Blakely’s dictates.

Essentially, when a NY prosecutor requests discretionary persistent felony offender status for a defendant, the court, in a special sentencing hearing, determines whether the convicted offender is classified as a persistent felony offender by evaluating her past criminal history. The offender’s criminal history can include past behavior on parole, prior convictions, statements from probation and parole officers, and acquitted conduct–i.e., far more than just the facts found by the jury.

Blakely, however, dictates that only the jury can increase an offender’s sentence. beyond the maximum. Since persistent felony offender classification results in a substantially lengthened sentence for the offender–based on facts found by a court, not a jury–P.L. 70.10 runs counter to Blakely’s mandate.

As Judge Gleason argues, “It does not matter what type of factfindinga judge makes; if a finding is “legally essential” to the enhanced sentence, the Sixth Amendment is violated unless that fact is either admitted by the defendant or found by a jury beyond a reasonable doubt.” In other words, when there is discretion, only a jury may decide whether to enhance an offender’s sentence due to her past crimes and criminal history.

Of course, as the opinion points out, one way the New York legislature could get around this Blakely problem is to just classify *every* convicted offender with more than two felonies as a persistent felony offender. And although I’ll all for giving more discretion to the jury, I’m not sure that reacting to Blakely by eradicating all judicial discretion is in the best interests of anyone. Thus I’ll be following this case with interest and a bit of trepidation.

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? [...]]]> Having 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….

For a while, of course, it did seem like Law & Humanities would go from margin to mainstream, particularly in the late eighties and early nineties. Everyone seemed to be publishing a book–Fish, Fiss, Delgado, Weisberg, etc–even Posner. And let’s not forget the Yale Journal of Law & the Humanities. It was a heady time.

But fifteen to twenty years later, the whole Law & Humanities movement hasn’t taken over the law in the way that it seemed it might. Certainly the disciplines of sociology and psychiatry have had their influences on legal scholarship, and there definitely are academics who focus on law & hum. But it’s never had the sweeping domination that law & econ had on the academy, or that empiricism seems to be having now.

Why is that? I think that the humanities has much to offer the study of law, and not just in the token “Law and Literature” or “Law and Race” course. So many legal scholars, however, have disdain for the whole endeavor. Is it the jargon? The lingering effects of deconstruction? The resistance of what is still considered a “professional” education?

Naturally, I have a few pet theories, but I’d love to hear from others….

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 [...]]]> Fresh 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?

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 [...]]]> For 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….

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 [...]]]>

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.