Articles Tagged with Sentencing

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.

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.

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.

In United States v. Eslinger, __ M.J. ___ (A. Ct. Crim. App. 14 May 2010), the court has set out a useful reminder in two areas:  a military judge’s duty to instruct on all issues and the potential problem of defense waiver of instructions, and how to handle testimony that an accused does or doesn’t have rehabilitative potential.

1.  Instructions

A military judge has a sua sponte duty to give certain instructions when reasonably raised by the evidence, even in the absence of a request by the parties. United States v. McDonald, 57 M.J. 18, 20 (C.A.A.F. 2002) (citing R.C.M. 920(e)). Mistake of fact is a special defense that a military judge must instruct court members on sua sponte if reasonably raised by evidence. R.C.M. 916(j); R.C.M. 920(e)(3). Waiver does not apply based on the mere failure to request the affirmative defense instruction or to object to its omission. United States v. Taylor, 26 M.J. 127, 128-29 (C.M.A. 1988). However, the defense can make a knowing waiver of a reasonably raised affirmative defense. United States v. Guitterez, 64 M.J. 374, 376 (C.A.A.F. 2007) (citing United States v. Barnes, 39 M.J. 230, 233 (C.M.A. 1994)). For a waiver to be effective, it must be clearly established that appellant intentionally relinquished a known right. See United States v. Harcrow, 66 M.J. 154, 157 (C.A.A.F. 2008) (citations and quotations omitted).

NMCCA has decided United States v. Oglesby.

The issue was prosecution sentencing evidence of other acts toward the victim which had not been charged.  Appellant alleged that the military judge failed to conduct a proper 1001 and Mil. R. Evid. 403 balancing test.  NMCCA disagreed.

NMCCA found that the military judge properly evaluated the evidence as to its admissibility, including a 403 balancing.  The court further found that the military judge correctly gave a limiting instruction to the members on how they could use the additional evidence.

Should military veterans get a break when they are sentenced for crimes?

Asks a piece in the Wall Street Journal.  This is interesting in light of some discussion on CAAFLog about sentencing in court-martial and sentence ranges under the UCMJ.  Seems some civilian judges are more interested in giving a sentence based on the whole person and individualized rather than  a set amount.

“We dump all kinds of money to get soldiers over there and train them to kill, but we don’t do anything to reintegrate them into our society,” says John L. Kane, a federal judge in Denver.