I’ll be taking a short break from blogging. Happy Easter in the meantime!
Archive for March, 2012
Back on April 24
Tuesday, March 27th, 2012A Good Week for the Right to Counsel
Friday, March 23rd, 2012With three decisions this week, the U.S. Supreme Court has signficantly strengthened defendants’ right to effective assistance of counsel. In my next post, I’ll cover the two decisions that have received the most press coverage, Lafler v. Cooper and Missouri v. Frye. Here, I’ll comment on Martinez v. Ryan, a decision that seems much narrower than the other two, but that may ultimately prove no less significant. At issue is the right to counsel in collateral proceedings — an issue that has been hotly contested at the Court for many years.
Here’s what happened. An Arizona jury convicted Martinez of sexual conduct with a minor. After trial, the state appointed a new lawyer to handle Martinez’s post-conviction challenges. This lawyer pursued a direct appeal, which proved unsuccessful, and also initiated a state collateral proceeding by filing a “Notice of Post-Conviction Relief.” Later, however, the lawyer filed another statement asserting that she could find no colorable claims for collateral relief. Martinez then had 45 days to file a pro se petition in order to keep the collateral proceeding alive. He did not do so, allegedly because his lawyer failed to advise him of what was happening in his case. In any event, the state trial court then dismissed the collateral proceeding.
England Cracks Down on Judicial Sentencing Discretion, Sort of
Tuesday, March 20th, 2012Julian Roberts has a new article that explains sentencing reforms recently implemented in England pursuant to the Coroners and Justice Act 2009. It is interesting to see that the political dynamic in England is quite reminiscent of the ongoing debates over guidelines and judicial discretion in the federal sentencing system here.
England has had sentencing guidelines for more than a decade, but there have been concerns that judges do not follow them consistently. (Curiously–and in marked contrast to the U.S. experience–England’s guidelines were set up without any systematic data-collection process to monitor compiance. However, one study in 2008 suggested that only about half of cases are sentenced within the guidelines range.) As a result, legislation was proposed to give the guidelines more of a presumptive character.
It’s Not a Felony to Be Homeless, Wisconsin Supreme Court Holds
Friday, March 16th, 2012As William Dinkins, a Wisconsin sex offender, approached the date of his release from prison, he was obliged by state law to provide an address at which he would be residing upon his release. The problem is that he did not have a home, and there was no one willing to take him in. Despite his efforts and those of a social worker to line up a place for him to live, when he missed the deadline to report a post-prison residence, the state prosecuted him under Wisconsin’s sex-offender registration law, which makes it a felony for a sex offender to “knowingly fail[] to comply with any requirement to provide information.”
The trial court found Dinkins guilty as charged and gave him 90 days in jail.
Although framed as a “failure to provide information,” Dinkins was, for all intents and purposes, convicted and punished for being homeless. Or more precisely, I suppose, he was punished for being a homeless sex offender. Either way, this seems functionally a status crime, and status crimes are unconstitutional under Robinson v. California, 370 U.S. 660 (1962).
Should Police Be Required to Equalize Arrest Rates in Poor and Middle-Class Neighborhoods?
Tuesday, March 13th, 2012When police choose to arrest a resident of a particular neighborhood for committing a crime in that neighborhood, the decision produces certain costs and benefits for the neighborhood. And when police concentrate resources in certain neighborhoods, or adopt different enforcement strategies in different parts of a city, the costs and benefits of arrests will be distributed unequally among neighborhoods. Such distributional consequences of policing strategy are the subject of an interesting new article by Nirej Sekhon, “Redistributive Policing,” 101 J. Crim. L. & Criminology 1171 (2011).
It seems self-evident that policing strategies should not be regressive, that is, exacerbate preexisting socioeconomic disparities among neighborhoods. Rather, the ideal should be to distribute the benefits and burdens of arrests evenly across neighborhoods. The problem, of course, is that crime rates are not distributed evenly.
Sekhon’s solution is to tie neighborhood arrest rates to neighborhood crime rates:
The obligation to distribute policing costs equitably ought to require police departments to make arrests in proportion to the rate of specific criminal misconduct in specific areas. Police departments should not arrest offenders in one community while allowing those in another community to engage in similar conduct with impunity. (1220)
This might have a large impact on drug enforcement, for instance. Since the rates of drug use appear no less among well-off whites than among poor minorities, Sekhon’s approach would seem to require police to intensify enforcement in middle-class neighborhoods, deescalate enforcement in poor neighborhoods, or both.
Seventh Circuit Approves 30+ Years for Possession and Covert Production of Kiddie Porn
Friday, March 9th, 2012Last week, in United States v. Klug (No. 11-1339), the Seventh Circuit upheld a whopping sentence of 384 months for producing and possessing child pornography. This sentence was actually below the guidelines’ recommendation of life. Notably, for a case involving such an extraordinarily long sentence, there is no allegation that Klug coerced the child subjects of the pornographic videos he created, or that they were sexually molested. Rather, the videos were made covertly, mostly involving showering, changing clothes, using the bathroom, and the like. Moreover, Klug disguised the faces of the subjects before circulating their images.
Of course, what Klug did was very wrong, and if the kids ever find out that these sorts of images of them were circulated on the Internet, they would be well justified in feeling violated. Still, in challenging the substantive reasonableness of his sentence, Klug may make a fair point that the district judge’s decision leaves little meaningful difference in the punishment for what he did and what the producers of violent, hard-core child pornography do.
Although not using the term, Klug apparently framed this argument as one of marginal deterrence: if we give 30-year sentences to producers who don’t molest their subjects, there’s no reason not to molest.
SCOTUS Affirms Discretion of Habeas Courts in Deciding Whether to Substitute Counsel
Tuesday, March 6th, 2012Yesterday, in Martel v. Clair (No. 10-1265), the U.S. Supreme Court affirmed that district judges in habeas cases have broad discretion in responding to defendants’ requests for new counsel. In so doing, the Court rejected an argument that a capital defendant may only replace his appointed lawyer if the defendant has suffered an actual or constructive denial of counsel. Rather, the Court held, capital defendants are subject to the same “interests of justice” standard that governs requests for new counsel by noncapital defendants. The Court further emphasized that the inquiry is highly context-specific and must be reviewed deferentially by appellate courts.
Here’s what happened.
