Thursday, May 27, 2010

New sentencing blog on the block

Doug Berman turns us onto the new blog SentenceSpeak from the group Families Against Mandatory Minimums. I was particularly interested to read this post quoting Supreme Court Justice Anthony Kennedy on the question of mass incarceration:
When a questioner referred to comments Kennedy made in 2004 about America’s exploding prison population, the justice responded:

"If you were asked to design a penal system that would win the prize for the worst system, the one you’ve got would at least be runner-up.

“If cost is a way to activate human compassion, I’ll take it. We are squandering our resources and spending them in the wrong way.”

Kennedy said he approves of sentencing guidelines but is critical of mandatory minimums that are often imposed in drug cases.

Asked how he would define an activist court, Kennedy quipped: “An activist court is a court that makes a decision that you don’t like.”
There's also an interesting post regarding a Supreme Court ruling on the propriety of alleging crimes during the sentencing phase for which the defendant was never indicted are only supported by a preponderance of the evidence, not the higher standard of "beyond a reasonable doubt." This prosecutorial tactic is allowed in Texas state courts where the standard of proof for offenses alleged at sentencing is "beyond a reasonable doubt." But SCOTUS unanimously rejected the practice in federal venues where the standard of proof is only a preponderance of the evidence. Justice Kennedy wrote, "Elements of a crime must be charged in an indictment and proved to a jury beyond a reasonable doubt." (CORRECTION: This version corrects an erroneous interpretation in the original text; see the comment section for more detail.)

Check back with SentenceSpeak for coverage of federal sentencing issues that Grits typically doesn't tackle.

12 comments:

Anonymous said...

"This prosecutorial tactic is allowed in Texas state courts"

No, it's not.

In Texas, they have to be proved beyond a reasonable doubt and the state has to give prior written notice to the defense.

Gritsforbreakfast said...

How do you explain this case? That's what I was basing that statement on; before seeing it I would have likely agreed with you.

Shannon Edmonds said...

CCP Art. 37.07, Sec. 3(a)(1) permits the State to offer various types of punishment evidence, including "... evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant ..."

That's been the law in Texas since 1993.

Anonymous said...

The "Prieto" article was obviously written by someone with limited or no knowledge of Texas Criminal Procedure.

It's not a "tactic" as in something to be selectively employed. It's the basic scheme of how our criminal trial procedure has been established.

Gritsforbreakfast said...

Okay, I edited the post to reflect my understanding of what y'all are saying. If it's still inaccurate, let me know. Honestly, I just didn't understand before I saw the Prieto case that the state got to bring in a bunch of unrelated allegations at sentencing and was reacting to that news story, so I'll admit my ignorance about the subject.

BTW, regrettably I've made a couple such errors recently, in large part I fear because I'm focused elsewhere for the next few weeks on completely unrelated topics for my paid work and just haven't been ensconced in these subjects day to day or had time to do primary research. Some have complained (I offered them their money back), but I do regret the occasional mistake. It's the price of writing daily without an editor, which in many ways is tantamount to tightrope walking.

That said, believe it or not, though I get accused of all sorts of nefarious reasons whenever I make a mistake, sometimes it happens because a) I'm trying to understand something that's new to me and writing about a subject forces me to think the issue through (and research it when I've got more time, which wasn't the case in this knockoff post), and b) I assume commenters usually catch errors, so even if I don't have complete information, often starting a conversation will lead others fill in the blanks.

It's ironic, really. Y'all learn more when I get things right. I often learn more when I make a mistake.

Shannon Edmonds said...

It happens. Hard to see why anyone would get upset about something like that--oh wait, I keep forgetting, for many the SOLE purpose of Internet com boxes is to vent their outrage at life. Silly me.

Seriously, though, one should hesitate to accept commentary on Texas law from bloggers/commentators like Prof. Berman who are, indeed, experts in some areas, just not in the area of Texas law. "Trust but verify" is the sound practice (again, yet another concept largely unfamiliar to most people on the interwebs).

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