U.S. Judiciary restricted access to criminal case material

The U.S. Judicial Conference, for those who missed it, issued a proposal back on Sept. 10th. to restrict public internet access on criminal case plea agreements identifying people who cooperate with law enforcement officials.

A number of things, such as unexecuted summonses & warrants, juvenile records, and sealed documents are already not included in public criminal case file information available to the public, either on the Internet or at the courthouse, but of particular concern to the Judicial Conference is the practice of compiling & posting lists on the Internet of names, locations, and descriptions of alleged cooperating witnesses. (See Policy Guidelines Here)

Comments to the proposed rules can be made until October 26th.




Comments concerning the draft Rules Governing Judicial Conduct & Disability Proceedings can also still be made until October 15th.

Federal Crack/Powder Cocaine Policy

Momentum is building, a recent National Law Journal article says, to change the “100-to-1” sentencing disparity for seen between crack and powder cocaine offenses.(Subscription)

Three examples are cited by the article: the Supreme Court’s hearing Kimbrough v.U.S. next week, the Sentencing Commission’s proposed guideline amendments seeking to lower offense levels for crack cocaine; and the fact that there are already five bills in Congress, with the Senate holding hearings next month on the different penalty structure between the two offenses.

Kimbrough is asking whether in imposing a sentence that is “sufficient but not greater than necessary” district courts may consider either the impact of the “100:1 powder/crack weight ratio” implemented in the Sentencing Guidelines, or reports & recommendations of the Sentencing Commission regarding that ratio?

The bills referred to are 1383, 1685, and 1711 in the Senate; and 79 and 460 in the House of Representatives.

The Sentencing Commissions proposals were published last May 1st.and are still open to public comment until next Wednesday. Unless rejected by Congress, they’ll go into effect on November 1, 2007.


Kimbrough petitioner’s brief
Kimbrough respondent’s brief
[Also see U.S. Sentencing Commission, Report to Congress: Cocaine & Federal Sentencing Policy (1995)]
U.S. Sentencing Commission, Report to Congress: Cocaine & Federal Sentencing Policy (2007)]

Tennessee District Court's lethal injection hold

The U.S. District Court for Middle Tennessee , Wednesday, postponed the execution of Edward Harbison next week in finding that that state’s new protocol for administering lethal injections “does not ensure that inmates are properly anesthetized before the lethal injection is administered, which could result in a terrifying, excruciating death.” (Decision)

Tennessee, like Ohio, now joins Florida, Missouri, Maryland, California, Delaware, Texas, Arkansas, South Dakota, and North Carolina as states employing lethal injection, but having further executions either blocked or postponed. (See Here)

The decision’s reached national and some international attention.

20 inmates now part of Southern Ohio District Court lethal injection suit

Southern Ohio District Court, last Wednesday, added another five names to the suit pending in that court which challenges Ohio’s lethal injection procedure as being cruel and unusual punishment. The case, now having 20 death row inmates named as plaintiffs, was originally filed back in 2004 by Richard Cooey. (See Previous Posts)

(Article)

Federal Sex Offender Commitment Statute Unconstitutional

East North Carolina’s district court earlier this month issued an order that strikes down that portion of the Adam Walsh Child Protection Act that allows federal prosecutors to have sex offenders about to be released from prison committed to mental hospitals when “clear & convincing evidence” is present that the inmate is a “sexually dangerous person.”

Some 17 states, including New York, Kansas, Illinois, and Texas, have laws authorizing the civil commitment of sexually violent predators at the end of their criminal sentences, the Supreme Court having upheld the constitutionality each. [See Kansas v. Hendricks (1997) and Kansas v. Crane (2002)] The District Court agreed with respondents in the case who had argued that “the broadly applicable commitment scheme outlined in 18 U.S.C. § 4248 differs substantially from the carefully drawn, narrowly applicable scheme addressed in Hendricks and Crane.”

“Commitment pursuant to § 4248, as it is written,” the Court said, “would constitute a due process violation because such commitment, contingent upon a factual finding that an individual engaged in specific criminal conduct, is permitted on a proof of such conduct by clear & convincing evidence, where the reasonable doubt standard is necessary to ensure such due process.”



The North Carolina case, above, coincides with the release of a two-year study – according to a FindLaw article last week, the first comprehensive study of sex-offender policies in the United States – which concluded many of those laws are of questionable or limited value. (Human Rights Watch report)

6th. Circuit Court of Appeals death sentence writ of habeas corpus

The 6th. Circuit Court of Appeals reversed the judgment of its district court, granting a defendant a conditional writ of habeas corpus yesterday in concluding that the defendant didn’t “knowingly & intelligently waive his Miranda rights” when he was arrested back in 1992., citing Fare v. Michael C. and a need to “inquire into the totality of the circumstances surrounding the interrogation” of a suspect in its decision.

7th. Circuit Court of Appeals/ below sentencing guidelines case

The 7th. Circuit Court of Appeals Tuesday remanded for resentencing a case that dealt with the possession & distribution of drugs over a five-year period -- the defendant here in particular having taken advantage of the federal “safe guard” provisions in 18 U.S.C §3553 (f) prior to sentencing – holding that the district court “was wrong to conclude that the ‘lowest sentence possible’ was the bottom of the guidelines range, and that if it legitimately concluded the defendant’s personal characteristics warranted something lower, it was free to sentence him below the guideline range.”

Ohio sex offender residency restrictions

Ohio’s Northern District Court, last Tuesday, held that Ohio law prohibiting sex offenders from residing within 1,000 feet of a school, playground, or daycare center was “unconstitutional as an ex post facto law if applied to (to the particular defendant in this case). At least that’s the position the Ohio Attorney General is taking while advising prosecutors that the statute is constitutional and the case most likely to be appealed. (Decision)

According to the Attorney General’s press release, the Northern District Court ruling exempting a convicted sex offender from the state’s offender residency requirements, is “based on a unique set of facts & circumstances presented that Court, and applies only to that defendant’s case.” The defendant’s attorney thinks it’s more extensive, and so the stage once again is set for debate.

The subject of the “fairness and effectiveness of Ohio’s residency law has heated up in the past year as county prosecutors began telling offenders who live near schools & day care centers that they have to move,” an Enquirer article said yesterday, and it’s resulted in a number of like cases, including one pending in the Ohio Supreme Court that’s certified the conflict between lower state courts. Now we have the same situation federally.

The Southern Ohio District Court, last year, took an almost exactly opposition position as Tuesday’s Northern District’s in denying registered sex offenders’ motion for injunctive relief in challenging the constitutionality of the statute.

Also last year – on the same day – while the 1st. District Court of Appeals here in Hamilton County was deciding that the 1,000-foot rule wasn’t ex post facto in nature even though it was “intended to be applied retroactively,” the 2nd. District Court of Appeals in Miami County held “it affected a substantive right—specifically the defendant’s right to maintain the residence he owned & had resided in for years prior to the enactment of the law.” Those are the cases which have certified to the Supreme Court and scheduled to be heard next month. (See Here)

Meanwhile…. While Canal Winchester, a suburb of Columbus, unanimously approved an ordinance restricting residency of sex offenders, Grandview Heights, 15 miles northwest, rejected a similar measure, making it the first central Ohio suburb to vote down such undertakings, according to a Columbus Dispatch article yesterday. Canal Winchester, the article states, is among a growing number of cities, towns & villages going further than state law provisions by enacting their own.