Friday, April 23, 2010

Federal Sentencing Trends post-Booker

More than five years after the Supreme Court held that the federal sentencing guidelines are no longer binding but merely advisory, judges for the most part continue to follow them, though there is an ever-growing divergence, according to the most recent federal sentencing statistics.


Judges are attempting to comprehend the degree of discretion the Court handed back to them in U.S. v. Booker, 543 U.S. 220 (2005), which held that the guidelines violate the Sixth Amendment right to a jury because they required harsher sentences based on facts found by judges rather than jurors.


Instead of eliminating the guidelines, the Booker Court said judges must take them into account, along with other factors listed in the sentencing law, 18 U.S.C. 3553(a), including the nature and circumstances of the offense.


There has clearly been an incremental trend away from strict adherence to the guidelines. The statistics, released April 9, show that for the 2009 fiscal year, which ended Sept. 30, 2009, 56.8 percent of sentences were inside the guidelines, down from 61.7 for 2006, the first year after Booker.


The percentage also declined in both of the intervening years, to 60.8 percent in 2007 and 59.4 in 2008.


It seems that nationally more than half of sentences are within the guidelines, the rate varies widely from district to district -- from a low of 27.8 percent in the District of Arizona to a high of 92.3 percent in the District for the Northern Mariana Islands, both part of the 9th Circuit. The second lowest and highest rates of fealty to the guidelines were the District of Vermont's 30.8 percent and the Southern District of Mississippi's 80.7 percent.  The 3rd Circuit averaged 46 percent with the lowest rate the Eastern District of Pennsylvania's 37.9 and the highest, the 68.6 in the Virgin Islands.


When judges stray from the guidelines, they are far more likely to go below them. Nationally, lesser sentences were meted out in 41.2 percent of cases, versus only 2 percent where they were greater.


Judges around  the country were most likely adhere to the guidelines for simple possession drug cases (90 percent), burglaries (83.3) and prison offenses (70.8). They were least inclined to do so where the offense was kidnapping or hostage taking (31.7), national defense (33.3) and bribery (35.7).


Since Booker, the Court has held that when an appeals court reviews a sentence, it is limited to deciding only whether it was reasonable.  A sentencing court must fully explain its reasons for sizable downward departures.


Douglas Berman, a law professor from Ohio State University's Moritz College of Law and the author of the Sentencing Law and Policy blog, says the Supreme Court has consistently upheld district judges' exercise of their post-Booker sentencing discretion.

Thursday, April 15, 2010

Does a drunken "yes" mean "yes"

The area of drunken consent in rape cases is a mine field where one needs to tread carefully. Pennsylvania Law is somewhat imprecise in this area (18 Pa.C.S. § 3121).

The classic definition of an alcohol induced blackout has the inebriated person acting relatively normally at a certain time, but the next day unable to remember anything concerning the period of time in question. Intoxication can result from ingestion of drugs or alcohol, but most of the case law in Pennsylvania seems to deal with alcohol intoxication. Is drunken consent real consent?

Young adults have beer parties, Jello shot parties, etcetera. For may young Americans, alcohol is the social lubricant. At what point must the healthy American male cease and desist from any attempt to have sex with a female who has been drinking? Let's face it most rapists are men and most victims of rape are women.

A complainant’s intoxication can impact consent in a rape trial in two possible ways. First, the complainant and the defendant could disagree about the fact or level of intoxication – i.e., capacity, so that the defendant claims either that the complainant was not drunk at all, or that she was not drunk to the degree that she was incapable of consenting but merely was disinhibited, and therefore she was in fact capable of, and did, consent. Second, there could be disagreement about whether or not there was consent – i.e., the defendant claims that the complainant gave consent, albeit drunken, and that she was capable even though intoxicated, whereas the complainant states that she cannot remember what happened because she was extremely drunk but that she knows that she did not want to have sex with the defendant (and she may also claim that she was too drunk to resist). The claim then could be either that she was not intoxicated (enough) and capable, or, that despite a high level of intoxication, she did consent.

What is consent? Is it a state of mind? Is it a set of actions or behaviors performed in a certain way? Is consent just an attitude formed in the mind of the consenter? Judges and juries have to deal with these issues every day in Pennsylvania. After the fact, they have to figure out through testimony and other evidence what version of reality to buy. A "yes" or a "no" is often interpreted by the actions of individuals. One court recently said that consent is not an attitude at all, "It is to act in a way that has conventional significance in communicating permission.” Inevitably, the issue turns on what the jury believes the complaining witness did or said to give the defendant permission to act.

Many feminists will not like some of the things we are saying here. They will argue that there is much ambivalence in a mental state, etcetera, etcetera. There is much controversy as of late on college campuses and many University codes are weighing in with their positions

Some local University sexual assault policies:

University of Pennsylvania

Assent shall not constitute consent if it is given by a person who because of youth, mental disability or intoxication is unable to make a reasonable judgment concerning the nature of or harmfulness of the activity. This policy applies to groups as well as individuals.

Drexel

Or cannot give consent (e.g. due to intoxication)

Temple

(c) Forcing, or attempting to force, any other person to engage in sexual activity
of any kind without her or his consent.
Consent is not considered given by a person when he/she is unable to make a
reasonable judgment concerning the nature or harmfulness of the activity because
of his or her intoxication, unconsciousness, mental deficiency or incapacity, or if
consent is the product of threat or coercion.

LaSalle

Don’t take advantage of someone’s drunkenness or drugged state.

Saint Joseph's University

There are situations when a person may be considered incapable of giving consent such as, if he/she is: asleep, unconscious and/or losing and regaining consciousness, or clearly mentally or physically incapacitated, for example, by alcohol and/or other drugs. A verbal "no" even if it may sound indecisive or insincere, constitutes lack of consent. Further, it is not necessary that an individual resist an attack or otherwise affirmatively express lack of consent.


Use of alcohol and/or other drugs shall not diminish one's responsibility to obtain consent. Being in an on-going relationship does not preclude the possibility of sexual misconduct occurring within that relationship.

Villanova

A man may also wrongly assume that a woman is automatically sexually “available” when there is alcohol involved. Sexual assault also may result from an assailant taking advantage of a woman’s diminished capacity to set limits or protect herself when she has been drinking.


The new standard seems to be to an attempt to reshuffle the concept of consent.  Would it be a good idea to breathalyze rape victims to determine  the level of their intoxication?  Should we set a new standard for  drunken sex as there is for drunken driving?  In Britain, there is serious legislative movement towards doing just that.

This is complicated stuff to attempt to understand a woman's experience of sex when intoxicated, or a man's perception of a woman's intoxicated consent. It is safe to say that raging hormones and binge drinking don't mix well together.

Tuesday, April 13, 2010

Prosecutor overload on SCOTUS




Merrick Garland is a possible candidate to replace Justice Stevens who has been a Judge on the District of Columbia Court of Appeals since 1997.  Garland was once mentioned by D.C. insiders as a potential dark-horse candidate for attorney general. Garland is one of two candidates to replace Justice Stevens who have judicial experience (the other is Judge Diane Wood of The 7th U.S. Circuit Court of Appeals).  Garland is generally considered a judicial moderate, which is a fact that will not endear him to liberals and those who fear the rightward shift in the Court's philosophy.  He's almost certainly to the right of other possible nominees such as Wood and Kagan.

Garland has worked on and off for the Justice Department as an assistant U.S. attorney for the District of Columbia. He was promoted to deputy assistant attorney general in the Justice Department's criminal division in 1993 and became principal associate deputy U.S. attorney general in 1994, where he stayed until his court nomination. Garland is known for  his management of the investigation of the 1995 bombing of the Oklahoma City federal building and subsequent prosecution of bomber Timothy McVeigh. His prior work under the Criminal Division of the Department of Justice could give him a pro-prosecution bias.


Many defense lawyers are opposed to another ex-prosecutor on the bench.  Garland and Sotomayor have a clear law and order profile not sympathetic to criminal defendants