Articles Tagged with sentencing law and policy

Prof. Berman notes a unique “stale” murder/rape case in Illinois.

Speaking of the Supreme Court, two recent rulings by the Justices, Gall and Pepper, made much of considering under federal sentencing law the positive post-offense behavior by a defendant. In this case, it seems the defendant was a model citizen for more than five decades, during which time he apparently served our country in the armed services and served his local community as a police officer.

To some extent military courts already factor positive post-offense service as a sentencing consideration – it can be mitigating and show rehabilitative potential under R.C.M. 1001.

Thanks to Prof. Berman TG, here is a resource for collateral consequences of a conviction.

Unfortunately there are only nine state jurisdictions and federal filled in – a ways to go on a useful project.

Another place to look is SentencingProject.org.  (Note, it will be necessary to “sherardize.”) , or

The CAAF held that there is no right of confrontation at sentencing.  The other rules do apply, such as hearsay, unless you relax the rules (something I rarely if ever do).  United States v. McDonald, 55 M.J. 173 (C.A.A.F. 2001); United States v. George, 52 M.J. 259 (C.A.A.F. 2000).

The question in the title of this post is prompted by a new student note by Amanda Harris, which is titled "Surpassing Sentencing: The Controversial Next Step in Confrontation Clause Jurisprudence" and is available here via the Florida Law Review.  Here is the abstract:

After Crawford v. Washington opened the door to a Confrontation Clause debate in 2004, the United States Supreme Court has consistently confronted confrontation issues arising out of the Crawford interpretation.  One issue that the Supreme Court has not yet tackled is whether the Confrontation Clause applies during non-capital and capital sentencing. While many states and federal courts continue to hold that no right of confrontation during sentencing exists, many other courts have chosen to apply a right of confrontation in both capital and non-capital sentencing.

Here, from Prof. Berman TG at Sentencing Law & Policy is a reminder about evidence in CP cases.  I think most of us already do this, and a number of prosecutors already think of this.

A notable Third Circuit panel ruling today in US v. Cunningham, No. 10-4021 (3d Cir. Sept. 18, 2012) (avalable here), highlights the challenges (and the truly disgusting nature) of some federal child pornography prosecutions. Here is how the lengthy opinion gets started:

David Cunningham appeals the September 27, 2010 judgment of the United States District Court for the Western District of Pennsylvania sentencing him to 210 months’ imprisonment and 20 years’ supervised release based on his conviction for the receipt and distribution of child pornography, in violation of 18 U.S.C. § 2252(a)(2).  At trial, the District Court allowed the government, over Cunningham’s objection, to show the jury two videos containing seven different video clips totaling approximately two minutes as a sample of the child pornography that gave rise to the charges.  Cunningham contends that, because the Court permitted the videos to be shown without first viewing the videos to determine whether the danger of unfair prejudice substantially outweighed their probative value, the Court erred and his conviction must be reversed.  We agree that the District Court abused its discretion, not only by failing to review the videos prior to admitting them but also by allowing all of those videos to be shown to the jury, because the highly inflammatory nature of two of them clearly and substantially outweighed their probative value pertaining to the crimes charged.  Those errors were not harmless, and we will therefore vacate and remand for a new trial.

Thanks to Sentencing Law & Policy:

PBS Frontline has been giving lots of attention to criminal justice systems this fall. . . .  This week Frontline will broadcast a new documentary "The Confessions," which examines the case of the "Norfolk Four" involving a quartet of Navy men who were wrongfully convicted after being coerced into giving false confessions.

A preview is at this link.

I’ve posted before about CP sentencing in federal courts.  Here is a piece with links at Sentencing Law & Policy which further discusses CP related sentencing in federal courts and the U. S. Sentencing Guidelines Commission. 

As the sentencing guidelines for child pornography crimes have grown increasingly harsh, a strong trend has developed among federal judges to reject the proposed prison terms as draconian. Now two influential federal appellate courts — the 2nd and 3rd Circuits — have joined the trend and declared that the child pornography guidelines are seriously flawed, or at least that a trial judge wouldn’t be wrong for thinking so.

Here is a related link from SL&P.  While not precisely on point I read United States v. Nerad in the context of some push back on what’s to be punished and how severely.

There’s been lots of litigation about SORNA.  But now, courtesy of Sentencing Law & Policy we learn that DOJ has some recommendations for amending SORNA.

You will be interested to know that this morning the U.S. Department of Justice issued proposed supplemental guidelines modifying several requirements for compliance with SORNA. Many address concerns raised by the states and other stakeholders. They do the following:

  • Gives jurisdictions discretion to exempt juvenile offenders from public website posting
  • Provides information concerning the review process for determining that jurisdictions have substantially implemented
  • Gives jurisdictions discretion to modify the retroactive registration requirement to apply to new felony convictions only
  • Provides mechanisms for newly recognized tribes to elect whether to become SORNA registration jurisdictions and to implement SORNA
  • Expands required registration information to include the forms signed by sex offenders acknowledging that they were advised of their registration obligations
  • Requires jurisdictions to exempt sex offenders’ e-mail addresses and other Internet identifiers from public website posting
  • Requires jurisdictions to have sex offenders report international travel 21 days in advance
  • Clarifies mechanism for interjurisdictional information sharing and tracking.

(update) Here is a link to the 14 May 2010 entry in the Federal Register.