News from the blawgosphere…

posted in: Sentencing Consequences | 0

Catching up with some reading I thought I’d share some of what I am learning:

From the Chicago Tribune (h/t Sentencing Law & Policy), the story of a 23 year woman with no prior criminal history who was convicted of selling crack cocaine in Florida and sentenced to 30 years in a federal prison:

Looking back, I know I did something wrong, but I am also sure that I did not need 30 years in prison to learn my lesson. I am due a second chance, and I plan to make the best of it… As difficult as my time in prison has been on me, I know it’s been harder on my children. Not only did they lose their mother but I had to split them up between my sisters and my mother, who passed away in 2006. My oldest boys have had trouble with the law, which I know is common for kids with incarcerated parents. My heart breaks that I am not there for them… I have tried to stay positive and make the best of a bad situation. I received my GED, completed college courses and earned other licenses that will allow me to compete for a job when I am finally released.

From Simple Justice, which happens to be one of my favorite legal blogs to read, there is When Work Won’t Work.  This post discusses the collateral consequences of criminal convictions that linger far beyond jail, prison, probation, or parole.  The ramifications of a criminal conviction have been extended in the internet age, so that even youthful indiscretions are never really forgotten or forgiven.

Whether it’s because things have gone to far, such that even the most arch-conservatives no longer find it tolerable, or whether Murdoch’s current circumstances have provided him with a different view of the criminal justice system, is unclear.  That political interests are beginning to align around the idea that we have gone overboard, criminalizing everything in sight and creating a society where the consequences never end, is unproductive.

In Make No Mistake, Scott Greenfield (Simple Justice) offers another example of over-criminalization.  He references a story from Free-Range Kids, in which a three year old child was found wandering the neighborhood after escaping from the house, while her mother was napping.  Lenore Skenazy, the author of Free-Range Kids, offers this:

When we criminalize the ups and downs of normal life, we start making it seem as if living that normal life (which inevitably involves some mistakes and surprises) is criminal. That’s when we start believing we need to take extraordinary precautions against unlikely events, and hovering over our kids out of fear for them and fear for ourselves — we could be blamed!

Scott expands Lenore’s sentiments:

Whether we get crazy out of fear of being charged with a crime isn’t clear to me.  Few of us think much about it, not truly believing we, fine, upstanding, law-abiding citizens, could ever be charged with a crime because we’re the good guys.  No matter what we read about, see or hear, there’s a bone in our head that says only bad people get arrested.  Good people have nothing to fear.  We have nothing to fear.

It’s not until a bizarre event happens to us or someone who touches us that this becomes real.  We enter the incomprehensible world of the legal system, where nothing works the way the platitudes say it should, that the realization that Kafka wasn’t nuts hits home.

We can’t do this to ourselves and others.  We’re not good enough to survive such a vision, and we don’t deserve to be held to a standard that no person can achieve except by mere luck.  Accidents happen, not because we’re criminals but because we’re human.

In What’s My Crime?, Scott continues the over-criminalization discussion.  This time with an example out of Idaho discussed in the Wall Street Journal in which, “Eddie Leroy Anderson of Craigmont, Idaho, is a retired logger, a former science teacher and now a federal criminal thanks to his arrowhead-collecting hobby.”  The WSJ article is also the topic of a Cato Institute post entitled The Minefield of American Criminal Law which includes the following:

It’s great that this phenomenon is getting more attention. Too many people in Washington seem to think that the more laws Congress enacts, the better the job performance of the policymakers. That’s twisted. Before an elected official can take any action whatsoever, he or she must first take an oath to uphold and preserve the Constitution—and the role of the federal government in the criminal area is supposed to be quite limited.

Scott offers the following:

This won’t come as surprise to regular readers, but it raises an issue that may play a significant role going forward.  A fundamental axiom is that ignorance of the law is no excuse.  Not that every citizen is supposed to keep a set of Title 18 of the United States Code on his bookshelf (with pocket parts), as if any lawyer has read it cover to cover, but that the proliferation of criminal sanctions as the backside of regulation makes the axiom absurd.

On the one hand, it’s the fist in the legislative scheme, that for every bit of conduct Congress would have us perform or not, the flip side is a penalty for our failure to adhere.  Without it, regulations would be toothless, and violations of regulation, intentional and malevolent, would be meaningless.

That the Wall Street Journal thought to highlight this issue is the sort of thing that carries the potential of turning heads.  The glaring failure of Congress’ use of criminal sanctions to regulate conduct that otherwise bears no blameworthiness, and the fallacy that it’s needed or no one would follow the law, is well noted in the article.

But as long as people keep screaming that we need another law in order to achieve a perfect society, no matter that Casey Anthony’s acquittal isn’t a regular occurrence, we will not only continue to suffer a never-ending increase in criminalization, but watch as laws meant to solve one crisis put unintended people in prison.

Finally, from The Volokh Conspiracy is this article discussing the Utah case State v. Epling (Utah. Ct. App. July 21, 2011).  The issue in this case is what sentencing factors can be considered valid in determining the appropriate sentence to be imposed.  Eugene offers this analysis:

Perhaps I’m mistaken, but I likewise see little relevance of defendant’s interest in Playboy or Girls Gone Wild to whether the defendant is likely to reoffend, to the defendant’s moral culpability for his particular offense, to whether the defendant is likely to be rehabilitable, or to other matters that are usually seen as relevant to sentencing. To be sure, the crimes to which he pleaded guilty are heinous, and he deserves to be punished for them. But I don’t see how his consumption of pornography that depicts naked or partly naked women is more than marginally relevant to the degree to which he be punished for serious crimes involving the sexual abuse of a boy, especially given the Court’s reasoning in Dawson v. Delaware. (And though Dawson was a death penalty case, its reasoning is applicable to sentencing more broadly, and has been so applied by lower courts.)