Disturbing the Peace in Libraries: An Statutory Interpretation Puzzle

Most of my research in recent weeks has veered away from constitutional interpretation. This has been a welcome change of pace as theoretical questions of interpretation and the judicial shenanigans this work tends to uncover can grate on the soul after a while. But even when I'm researching intricacies of state criminal laws pertaining to libraries, these theoretical questions have a way of creeping up on me.

Take Massachusetts' law against disturbing the peace in libraries:

Whoever wilfully disturbs persons assembled in a public library, or a reading room connected therewith, by making a noise or in any other manner during the time when such library or reading room is open to the public shall be punished as provided in the preceding section. (emphasis added)

This law is Massachusetts General Laws, Chapter 272, Section 41. As of today, the preceding code section appears to be Section 40A, which provides:

Whoever gives, sells, delivers or has in his possession any alcoholic beverage, except for medicinal purposes, in any public school building, or on any premises used for public school purposes and under the charge of a school committee or other public board or officer, shall be punished by imprisonment for not more than thirty days or by a fine of not more than one hundred dollars, or both; provided, however, that a school committee of a city, town or district may authorize a public or nonprofit organization using a public school building with its permission during non school hours to possess and sell alcoholic beverages therein provided such nonprofit organization is properly licensed under the provisions of section fourteen of chapter one hundred and thirty-eight.

While Section 40A contains a punishment provision (imprisonment for 30 days and/or a $100 fine), it seems like a bit of an odd reference for Section 41's prohibition of disturbing the peace. Sure, selling or distributing alcohol in schools may constitute (or lead to) a disturbance of the peace, but the conduct at issue seems quite a bit different than the general disturbance covered in Section 41. Indeed, a better match appears to be the section preceding 40A--Section 40:

Whoever willfully interrupts or disturbs an assembly of people meeting for a lawful purpose shall be punished by imprisonment for not more than 1 month or by a fine of not more than $50; provided, however, that an elementary or secondary student shall not be adjudged a delinquent child for an alleged violation of this section for such conduct within school buildings or on school grounds or in the course of school-related events.

This section also includes a punishment provision--although it's slightly different from Section 40A, providing for punishment of up to a $50 fine (rather than $100) and imprisonment for one month.

The first instance of Chapter 272 of the General Laws that I could find is in the version of the General Laws that went into effect in 1921. That version of the General Laws includes both Section 40 and 41, but not Section 41A. It appears that Section 40 was enacted in 1849, and that Section 41 was enacted in 1885. Section 40A is nowhere to be found, as it wasn't enacted until 1962.

With all of this in mind, what is the meaning of "the preceding section" in Section 41? Do we read it from a present perspective and interpret it to mean what is now the preceding section--Section 40A? Or do we read it in the manner it would have been read in 1885 when Section 41 was enacted, at which point "the preceding section" seems to refer to to Section 40? 

Even if we decide that we must look to the original, 1885 meaning of the statute, the questions don't end there. How generally are we to interpret the original meaning of Section 41? A specific reading might be that "the preceding section" referred to a specific law--whatever was the preceding section at the time Section 41 was enacted. Under this approach, even if that law is later moved to a different chapter or repealed altogether, it would still inform the meaning of Section 41's penalty provision. An alternate, less specific reading would interpret "the preceding section" to refer to whatever section preceded Section 41 at the time of enactment. As it happened, that was Section 40 as it was written in 1855. The result the same as the previous, more specific reading, but the meaning employed is more abstract. 

Things change, however, if we get even more general with our reading of "the preceding section," and read it as expressing an original intent to reference whatever statute appears, at any time, immediately prior to section 41. This abstract reading would lead us back to the same result as a present-tense reading of the phrase, as a generalized statement abut whatever appears in the preceding section may change in meaning over time as that reference point shifts with the enactment of Section 40A. Or, to look at it a different way, this reading treats the enactment of Section 40A as also changing the meaning of Section 41. And now that we've laid out all these alternate formulation of the original meaning of Section 41, how are we to decide between these varying levels of generality?

To date, it does not appear that Massachusetts' courts have wrestled with these interpretive questions. It therefore remains unclear whether disturbing the peace in a library results in a fine of $50 or $100. Ever the optimist, I continue to hold out hope that the Supreme Court will take up a case that resolves this issue. 

A 32-Line Justice Breyer 'Question'

Behold!

 

 

From oral argument today in Beckles v. United States. H/T Josh Blackman, who helpfully notes here that Justice Breyer's record is 44 lines.

New Jersey Court Reportedly Bars Woman From Entering All Walmart Stores in Country

The ABA Journal has this story about a court that may have gone too far to protect Walmart from a shoplifter:

A judge in Mount Olive Township, New Jersey, has banned a shoplifter from ever shopping at a Wal-Mart store anywhere in the country. 

The defendant, 64-year-old Johanna Cassimore of Hopatcong, New Jersey, tells the New York Daily News she plans to appeal the sentence. “It was stupid. I disagree and I’m appealing it,” Cassimore said. “The judge can’t say that. He doesn’t own Wal-Mart.” 

The sentence by Judge Brian Levine also requires Cassimore to pay $258 in fines and to complete 10 hours of community service, according to the New York Daily News, NewJerseyHills.com and NJ.com.

Other reports on this case can be found here and here. The New York Daily News clarifies that the court involved was the Mount Olive Municipal Court.

Under New Jersey Law (specifically, NJSA 2B: 12-16), a New Jersey Municipal Court's jurisdiction is limited to the territory of the municipality in which the court is located. This means that the Mount Olive Municipal Court would have jurisdiction over the Walmart stores within the boundaries of the Mount Olive Township, but not over stores outside of the township.

I initially suspected that somewhere along the line, the word "county" became misspelled or misheard so that it transformed into "country." While I am not aware of any reports that verify this suspicion, I would not be surprised if it ended up being the case. But even if this alternative is correct and the court meant to bar Cassimore from all Walmart stores in the county, that order would also appear to overstep the boundaries of the court's jurisdiction. While Central Municipal Courts have jurisdiction over matters arising within the boundaries in the county, it does not appear that the Mount Olive Township Municipal Court is such a central municipal court. The jurisdiction of that court appears to be limited to all locations within the boundaries of the township.

The court's stay-away order appears to be reasonably related to the crime that Cassimore committed, and I would not be surprised to see a probation condition requiring Cassimore to stay away from Walmart locations in Mount Olive. But requiring Cassimore to stay away from all Walmart stores in the country would be an overly broad probation condition, and an appeal would likely result in the reduction of the order's scope.

The Retroactivity of California's Proposition 47

One of the notable features of California's recent Proposition 47 (Prop 47) is its retroactivity. As I explained in this previous post, You can find the full text of Prop 47 here on pages 7-11. Prop 47 reduces a number of felonies to misdemeanors. It also establishes procedures for reducing the sentences of those serving time for felonies that would be misdemeanors under Prop 47. And those who have finished serving their sentences for felonies that would be misdemeanors under Prop 47 can petition to have their felony convictions reduced to misdemeanor status.

While not all of Prop 47 is retroactive, it will have a significant impact on crimes committed before November 5, 2014. Moreover, the wording of Prop 47 suggests that its retroactive provisions may not be limited to its later resentencing sections. In this post, I discuss the extent of Prop 47's retroactivity. I begin with the portions of Prop 47 that are obviously retroactive, and then move on to sections that have a retroactive effect that may not be apparent at first glance.

Proposition 47 Passes in California

So reports the LA Times:

Penalties for common drug and theft crimes in California will be reduced from potential felonies to misdemeanors, shortening the time some offenders spend behind bars. 

Crimes covered by the measure include drug possession and the following offenses when less than $950 is involved: shoplifting, check and credit fraud, forgery, theft and possession of stolen goods. 

As with other misdemeanors, the new maximum sentence will be one year in jail, down from a maximum of three years. Those with histories of violence or sex offenses will be ineligible for the lighter sentences.

You can find the full text of Proposition 47 (Prop 47) here, on pages 7-11.

Regarding theft crimes, Prop 47 adds several new Penal Code sections relating to theft, one of which states:

490.2. (a) Notwithstanding Section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor, except that such person may instead be punished pursuant to subdivision (h) of Section 1170 if that person has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290. 

(b) This section shall not be applicable to any theft that may be charged as an infraction pursuant to any other provision of law.

This is bad news for those prosecutors who have made their names prosecuting felonies involving stolen avocados and fruits (PC 487(b)(1)(A)), fish and mollusks (PC 487(b)(1)(B)(2)), horses and pigs (PC 487a(a)), dead horses (PC487a(b)), and gold dust and quicksilver (PC 487d). Before Prop 47, theft of those items valued at an amount less than $950 could have been grand theft, and therefore could have been charged as a felony. But now, the value of those stolen items will need to exceed $950 for a felony to be charged. The same is true of situations where a defendant defrauds public housing services -- while a loss of $400 was previously sufficient to prove a potentially felonious grand theft, that amount has now been increased to $950.

It is important to note that contrary to the broad language used by the LA Times, the reduced sentencing provisions will apply to numerous people who have a history of violent convictions. Under Prop 47, the only people exempt from the reduced sentencing provisions will be sex offenders and those with a prior conviction listed under Penal Code 667(e)(2)(C)(iv). Here is that list of qualifying offenses:

(I) A "sexually violent offense" as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code. 

(II) Oral copulation with a child who is under 14 years of age, and who is more than 10 years younger than he or she as defined by Section 288a, sodomy with another person who is under 14 years of age and more than 10 years younger than he or she as defined by Section 286, or sexual penetration with another person who is under 14 years of age, and who is more than 10 years younger than he or she, as defined by Section 289. 

(III) A lewd or lascivious act involving a child under 14 years of age, in violation of Section 288. 

(IV) Any homicide offense, including any attempted homicide offense, defined in Sections 187 to 191.5, inclusive. 

(V) Solicitation to commit murder as defined in Section 653f. 

(VI) Assault with a machine gun on a peace officer or firefighter, as defined in paragraph (3) of subdivision (d) of Section 245. 

(VII) Possession of a weapon of mass destruction, as defined in paragraph (1) of subdivision (a) of Section 11418. 

(VIII) Any serious and/or violent felony offense punishable in California by life imprisonment or death.

It is also worth noting that Prop 47 adds section 1170.18 to the Penal Code, which makes the reduced sentencing provisions retroactive. Section 1170.18 lays out the procedure for those serving sentences or those who have already served their sentences to petition to have felony convictions reduced to misdemeanors.

For those who are serving sentences for felony convictions that Prop 47 reduces to a misdemeanor, section 1170.18 requires that a court reviewing a petition for a sentencing reduction grant the petition unless the defendant poses "an unreasonable risk of danger to public safety." Section 1170.18(c) provides a very narrow definition of this phrase:

As used throughout this Code, “unreasonable risk of danger to public safety” means an unreasonable risk that the petitioner will commit a new violent felony within the meaning of clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667.

This means that a defendant poses an unreasonable risk of danger to public safety only if there is an unreasonable risk that the defendant will commit one of the specific crimes in the list provided above. While there may be evidence that a defendant is indeed a dangerous person, it would likely be much more difficult to show that a defendant is likely to commit one of those particular, heinous crimes.

I noticed that section 1170.18(c) applies to the use of "unreasonable risk of danger to public safety" "throughout this Code," which presumably means that if this phrase appears elsewhere in the penal code, it is now defined by section 1170.18(c)'s very narrow definition.

I looked into whether this broad phrasing would have any impact on other laws. I found that while Prop 47 seemed to affect another statute, the deadlines included in that other statute effectively cancel out any impact that Prop 47's broad language would have. I go into the technical details of this investigation after the break, but in summary: Prop 47's broadly phrased section 1170.18(c) does not appear to have a significant effect on other sections of the Penal Code.

A Probation Condition Prohibiting the Defendant From Fathering Children

From the Christian Science Monitor:

An Ohio appeals court has upheld a judge's order that a father can't have more kids until he pays his back child support.

The decision this week by the appeals court didn't provide an opinion about whether the judge's order was appropriate. Instead the appeals court said it didn't have enough information to decide the merits of the case without a copy of the pre-sentence report detailing Asim Taylor's background. 

In January 2013, Judge James Walther said Taylor couldn't have more children while he is on probation for five years. The judge said the order would be lifted if Taylor pays nearly $100,000 in overdue support for his four children.

Reason.com covers the case here. Daniel Taylor at the Findlaw Blog notes that while this sentence is peculiar, it is not a surprise to see a sentence like this in Ohio:

Northeast Ohio is also developing a reputation for doling out "weird" punishments. A judge in nearby Cleveland once ordered a woman to wear an "idiot" sign in public after she was filmed driving on the sidewalk. South of Cleveland in Brimfield, Ohio, Police Chief David Oliver has used Facebook to publicly shame criminal suspects.

The opinion is available here. While the majority of judges reach the decision that there is not enough information to decide the merits of the case, there is an opinion by Judge Donna Carr, who concurs in the judgment and holds that the probation condition is appropriate:

Given the number of children by multiple mothers, the high amount of the arrearages, Taylor’s ability to work, the fact that he was actually earning enough money to retain counsel below, his continued refusal to make any payments toward the support of his children notwithstanding his notice of the charges against him, and his complete lack of remorse or justification for his actions, I would conclude that an antiprocreation condition of community control was not unwarranted under these facts. Moreover, I would conclude that the condition was narrowly tailored to serve the purposes of community control.

Judge Carr's conclusion has some support. Carr cites State v. Oakland, a 2001 Wisconsin state Supreme Court decision that upheld a probation condition prohibiting the defendant from having children.

While the probation condition may be legal, I certainly have some reservations over whether probation conditions that extend this far are desirable.

The Heritage Foundation Supports Scaling Back Mandatory Minimum Sentences

Douglas Berman of Sentencing Law and Policy posts that the Heritage Foundation is endorsing the Smarter Sentencing Act -- citing this recent blog post on the Foundation's website.

Berman notes that the Heritage Foundation is a notably conservative organization, and hopes that this organization's stance here, combined with some recent statements by notably conservative lawmakers, signals that sentencing reform may be possible.

Here is some of the relevant discussion from the Heritage Foundation's post:

Mandatory minimums were intended to address widely acknowledged problems with the criminal justice system. But good intentions don’t necessarily give rise to good results. In particular, some drug offenses, which make up a significant proportion of mandatory minimums, can give rise to unduly severe punishments. The difference between a drug quantity that triggers a mandatory minimum and one that does not will often produce a “cliff effect.” For example, someone with 0.9 grams of LSD might not spend much time incarcerated, but another fraction of a gram will result in a five years behind bars. It is difficult to conclude that the additional one-tenth of a gram demands a minimum sentence of five years’ imprisonment in every case, regardless of its facts. 

The Smarter Sentencing Act would allow judges to sentence nonviolent drug offenders below a mandatory minimum if the court finds that the defendant is not a serious offender (that is, the defendant has a limited or no criminal history, as defined by the U.S. Sentencing Guidelines, and no prior firearm, racketeering, terrorism, or sex offense convictions). The act would also make retroactive the Fairness in Sentencing Act of 2010, which prospectively reduced the disparity between the amount of crack cocaine and powder cocaine needed to trigger mandatory minimum sentences.

Berman remarks that this is a blog post and that he is not sure this represents the official view of the Foundation. Some more searching on my part led me to conclude that while the Foundation has not taken as explicit a stance on the issue of minimum sentencing, the blog post is certainly consistent with a lot of what they have written on criminal law.

For example, the most relevant report I was able to track down discussed the arguments for and against mandatory minimum sentences. While much of the report is presented in a balancing-of-arguments manner, the recommendations listed at the end make the Foundation's recent blog post less-surprising. Most relevantly is this recommendation:

Congress and the U.S. Sentencing Commission need to place a special emphasis on just deserts and proportionality when considering the use of mandatory minimum statutes. Perhaps a few lessons can be learned from the American Founding. The view of punishment during the Founding era, according to Professor Ronald J. Pestritto of Hillsdale College, “was a complex synthesis of the various approaches, where concerns for public safety and the reform of offenders proceeded from an understanding that punishment—appropriately applied—is inherently just and deserved.” While some criticize this approach as playing into public outrage expressed for certain crimes, “public anger represents a moral judgment and condemnation that is most accurately characterized as moral indignation.” Moral indignation is an appropriate response to inherently wrongful conduct carried out intentionally with knowledge that the act is unlawful or otherwise wrongful. While the utilitarian goal of lower crime through deterrence and incapacitation is worthwhile, lawmakers need to place special emphasis on the moral gravity of offenses in determining the proportionality of punishment. [Internal References Omitted]

The recommendation -- while not specific to drug offenses -- reflects the goals of the Smarter Sentencing Act. For example, this recommendation follows the report's remark that the 100-1 powder-to-crack cocaine sentencing ratio seems unfair -- with the report implying that the sentencing scheme would likely punish many users as though they were traffickers. Presumably, this would be a disproportionate condemnation.

The Heritage Foundation also calls for a reduction in scope of the federal criminal code -- highlighting testimony by their Senior Fellow, Edwin Meese, here.

I am not the biggest fan of politics, but when considering reforms or proposals, the political landscape is a reality that often cannot be ignored. With sentencing reform, liberals who seek major reforms would do well to research and adopt similar reforms that conservatives advocate. While different political parties may have different reasons for the policies they advocate, if those policies are substantially similar, politics should not get in the way.

UPDATE

I have revised the title of this post.

Criminal Justice Reform and Alternatives to Harsh Punishment

Today's New York Times contains an editorial by Bill Keller entitled "America on Probation."  Keller notes that high incarceration rates have prompted reform efforts by states and policymakers across the political spectrum. His column begins:

In recent years Americans have begun to wise up to the idea that our overstuffed prisons are a shameful waste of lives and money. Lawmakers have recoiled from the high price of mass incarceration (the annual per-inmate cost of prison approaches the tuition at a good college) and some have recognized that our prisons feed a pathological cycle of poverty, community dysfunction, crime and hopelessness. As crime rates have dropped, the public has registered support for reforms that would have fewer nonviolent offenders languishing in prison. For three years in a row, the population of America’s prisons has inched down; 13 states closed prisons last year. Efforts to fix the perpetual misery machine that is our criminal justice system have won support not only from progressives and academics but from conservatives (both fiscal and evangelical), from enlightened law enforcement groups, from business and even from advocates for crime victims. 

This emerging consensus is good news, since our prisons are an international scandal, and we can only hope the new attitude doesn’t evaporate with the next Willie Horton-style rampage or spike in the crime rate. But it raises an important question: What is the alternative? How do we punish and deter criminals, protect the public and — the thing prisons do most abysmally — improve the chances that those caught up in the criminal justice system emerge with some hope of productive lives?

Keller goes on to describe various reforms that serve to fulfill the criminal justice system's goals of punishment, deterrence, and rehabilitation, summarizing efforts at sentencing reform, supervision of probationers and parolees, diversion programs, re-entry programs, and policing reforms. Keller succinctly describes each of these reforms and provides examples of their adoption. This column is an excellent starting point for those who are interested in learning more about strategies to combat mass incarceration.

And for those interested in exploring these issues more, I thought that this would be a good opportunity for me to mention several resources I have found particularly helpful and interesting when it comes to learning more about criminal justice reform.

Could Robots Write Motions?

Via the Legal Writing Prof Blog, I learned of Ian Gallacher's article, Do RoboMemes Dream of Electric Nouns?: A Search for the Soul of Legal Writing.  Here is the abstract:

This essay considers the possibility that computers might soon be capable of writing many of the documents lawyers typically write, and considers what qualities of writing are uniquely human and whether those qualities are sufficient to render human written work superior to computer generated work. 

After noting that despite the claims of rhetoricians and narrative theorists, not all legal writing is persuasive writing, and that it is in the non-persuasive area of prosaic, functional documents that computer generated documents might gain a bridgehead into the legal market, the essay tracks the development of computer-generated written work, particularly in the areas of sports journalism and corporate reporting. The essay notes that the templates developed to generate these documents can be customized to produce the tone desired by the customer, meaning that both rhetoric and narrative have been captured and transformed into tools that can be manipulated by computer programmers. This in turn means that computer generated documents will not be devoid of rhetorical or narrative interest, making the programs that develop them potentially appealing for lawyers even if they seek to use them to draft persuasive as well as more functional documents. 

What these programs will lack, however, is empathy -- the ability to anticipate what information a reader will need from a document, and when the reader will need it, and to draft a document that meets the reader's needs and expectations. An empathetic human writer knows when to follow and when to break the genre expectations of a document and can send powerfully persuasive messages to a reader by use of that knowledge. 

The essay concludes that empathy is a crucial, and uniquely human, aspect of persuasive writing and that an empathetically-aware written document should be superior to a technically accurate but non-empathetic computer generated document.

Gallacher is pretty optimistic here that robots could not do the job of legal writers.  In some circumstances, I think that Gallacher is correct -- when analogizing a case in the meat of a brief's argument and drawing comparisons between different areas of law, a computer may not be able to grasp the nuances of language required to persuade the reader that there are indeed similarities between one case or area of law and another.

At the same time, other areas of law would not only be better off if arguments in the areas were written by machines, but also if they were judged by machines.  I am thinking specifically about California sentencing law (and possibly the sentencing laws of other states).  From my own experience, I know that when a criminal conviction is handed down, the number of years for the sentence is based on a wide variety of statutory references.  California's Three Strikes law means that prior, qualifying convictions add certain ranges of years onto current sentences (if those prior convictions are given "strike" status by the court).  

After figuring out the range of years for this conviction based on this formula, the court then needs to determine what fines the defendant should pay.  Some of these fines are mandatory and fixed.  Many of them have mandatory minimums, but the judge can exercise discretion and levy a higher fine.  If judges mischaracterize the type of fine they are levying, or levy an amount that deviates from the mandatory range, an appellate court might find that the prosecutor or defendant must forfeit an objection if the judge was mistaken.

After dealing with these technical, tedious sentencing requirements, and seeing many mistakes in sentencing phases, I a compelled to say that Gallacher's criticism of computer-written briefs is overbroad.  I would be interested in seeing steps in the direction of increased automization of briefing and decisions when it comes to criminal sentencing.  Automated briefs (that are properly programmed) could ensure that all of the elements of sentencing are argued -- or at least covered -- and submitted to the judge.  An automated program employed by the judge could ensure that in drafting an order, the judge would include all aspects of sentencing that he or she is required to include by law.

Admittedly, the area of legal writing where robots would excel is, at the moment, a narrow one.  At the same time, robots -- or at least computer programs that ensure the inclusion of all necessary elements -- may be worth considering in areas of the law that are technical, that include numerous mandatory elements, and that must be argued or decided in every case.

Senator Rand Paul on Restoring Felons' Rights

I will say at the offset that Senator Rand Paul is one of my least favorite politicians.  I feel this way about Senator Paul because he has a peculiar tendency to say things about law that make me cringe.

Take Senator Paul's stance on drones.  Senator Paul was a fervent critic of the Obama Administration's use of drones to target and kill members of Al Qaeda.  He even took to the floor of the Senate and led a 13-hour filibuster on the subject, arguing that it is wrong for drones to kill people without regard for their due process rights.  Paul lamented the administration's claim that drones would not be used unless there was an "imminent" threat - arguing that this terminology was overly permissive.

I suspected, however, that Senator Paul was not really engaging with the legal issues - and my suspicion was confirmed when in a later interview, he said:

I’ve never argued against any technology being used when you have an imminent threat, an active crime going on. If someone comes out of a liquor store with a weapon and fifty dollars in cash, I don’t care if a drone kills him or a policeman kills him. 

While I thought that Senator Paul cared about meaningful limitations on government police power, it appears that he got a bit too distracted by the creepiness of drones to put forth consistent arguments.

Despite my background opinions, however, I recently learned that not all of Senator Paul's points are rubbish.  He recently made some other interesting remarks that are much less irritating than his other points on drones or (God forbid) the Second Amendment.

Via the Sentencing Law and Policy Blog, I learned that Senator Paul gave a speech in Louisville. The Courier-Journal reports on what Senator Paul said regarding the rights of felons who have completed their sentences:

“I am in favor of letting people get their rights back, the right to vote ... Second Amendment rights, all your rights to come back,” he said. “I know of one man who 30-some-odd years ago had pot plants in his closet in college, got a felony conviction in college, still can’t vote, and it’s plagued him his whole life trying to get work.”

I think that Senator Paul's point on the right to vote certainly has merit, and his Second Amendment claim (while potentially inaccurate given the limitations listed in District of Columbia v. Heller) may at least get people thinking about whether people who have been convicted of a crime - yet who have completed their sentence - are really too dangerous to be given firearms.

And despite my typical dislike of his remarks, Senator Paul's technique of juxtaposing the issue of felon rights with the war on drugs is probably the strongest way for him to make his case.

Juvenile Sex Offender Registration and the Eighth Amendment

Via the CrimProf Blog, I learned about Catherine Carpenter's article, Against Juvenile Sex Offender Registration.  Here is the (rather lengthy) abstract:

Imagine if you were held accountable the rest of your life for something you did as a child? 

This is the Child Scarlet Letter in force: kids who commit criminal sexual acts and who pay the price with the burdens and stigma of sex offender registration. And in a game of “how low can you go?,” states have forced children as young as nine and ten years old onto sex offender registries, some with registration requirements that extend the rest of their lives. 

No matter the constitutionality of adult sex offender registration – and on that point, there is debate – this article argues that child sex offender registration violates the Eighth Amendment’s prohibition against cruel and unusual punishment. Once a sex offender, always a sex offender is not an apt adage when dealing with children who commit sexual offenses. Low recidivism rates and varied reasons for their misconduct demonstrate that a child’s criminal sexual act does not necessarily portend future predatory behavior. And with a net cast so wide it ensnares equally the child who rapes and the child who engages in sex with an underage partner, juvenile sex offender registration schemes are not moored to their civil regulatory intent. 

Compounding the problem is mandatory lifetime registration for child offenders. This paper analogizes this practice to juvenile sentences of life imprisonment without the possibility of parole, which the Supreme Court declared unconstitutional in Miller v. Alabama and Graham v. Florida. This article argues that mandatory lifetime registration applied to children in the same manner as adult offenders is cruel and unusual punishment because it violates fundamental principles that require sentencing practices to distinguish between adult and child offenders. 

Scrutiny of child sex offender registration laws places front and center the issue of what it means to judge our children. And on that issue, we are failing. The public’s desire to punish children appears fixed despite our understanding that child offenders pose little danger of recidivism, possess diminished culpability, and have the capacity for rehabilitation. In a debate clouded by emotion, it is increasingly clear that juvenile sex offender registration is cruel and unusual punishment.

Carpenter does well to draw attention to this issue, and I think that it is an important problem that people should know about.  Nevertheless, I think that the article tries to do too much, and ends up giving short shrift to the problem of whether sex offender registration constitutes punishment in the first place.  

Carpenter is fighting an uphill battle from the beginning, since most courts addressing the issue of sex offender registration find that registration is a non-punitive measure that is in place for purposes of keeping track of those convicted of sex offenses.  While I think that this approach overlooks the stigma associated with this sort of registration, Carpenter needs to do more to establish that registration is punishment before she gets into the Eighth Amendment analysis.  As the paper stands, there is some analysis on the punishment, but it is buried underneath the Eighth Amendment arguments - all of which assume the existence of punishment.

That said, Carpenter's discussion of this issue is both eye-opening and disturbing - and she points to a problem that courts or legislators should address (though from a political view, this is highly unlikely).  If the Carpenter change's the paper to present a better-organized, thorough argument as to why sex offender registration is punishment, I think that the overall argument will be greatly strengthened.

Iowa Supreme Court: Sentences of Mandatory Life Without Parole (or Practical Equivalent) for Juveniles is Unconstitutional

In three opinions released last Friday, the Iowa Supreme Court ruled that Iowa's constitution prohibits courts from imposing a sentence of life in prison without the possibility of parole for juvenile offenders.  The Court notably applied this rule to cases involving sentences that are the "practical equivalent" of life in prison without parole -- meaning that defendants sentenced to lengthy prison terms may still challenge these sentences if they result in the defendants effectively spending the rest their lives in prison.

The cases are:

State v. Null

State v. Pearson

State v. Ragland

I thought that this excerpt from Ragland did a good job summarizing the Court's holdings and reasoning:

[T]he rationale of Miller, as well as Graham, reveals that the unconstitutional imposition of a mandatory life-without-parole sentence is not fixed by substituting it with a sentence with parole that is the practical equivalent of a life sentence without parole. Oftentimes, it is  important that the spirit of the law not be lost in the application of the  law. This is one such time. The spirit of the constitutional mandates of  Miller and Graham instruct that much more is at stake in the sentencing  of juveniles than merely making sure that parole is possible. In light of  our increased understanding of the decision making of youths, the sentencing process must be tailored to account in a meaningful way for  the attributes of juveniles that are distinct from adult conduct. At the  core of all of this also lies the profound sense of what a person loses by  beginning to serve a lifetime of incarceration as a youth.  

In the end, a government system that resolves disputes could  hardly call itself a system of justice with a rule that demands  individualized sentencing considerations common to all youths apply only to those youths facing a sentence of life without parole and not to those youths facing a sentence of life with no parole until age seventy-eight. Accordingly, we hold Miller applies to sentences that are the  functional equivalent of life without parole. The commuted sentence in  this case is the functional equivalent of a life sentence without parole.

The Des Moines Register reports on the case here.

(H/T: Howard Bashman at How Appealing)

The Second Amendment and California Sentence Enhancements

Overview: this lengthy post discusses California sentencing enhancements and whether they pass muster under the Second Amendment.

Under section 12022(a) of the California Penal Code, a defendant who is convicted of a felony will receive a one-year enhancement on his or her sentence if that defendant was armed with a firearm in the commission of that felony unless being armed is an element of the felony.  It appears that being “armed” covers a broad category of situations, with one court interpreting section 12022(c)’s phrase “personally armed” to cover individuals who have the firearm on his or her person or “available for offensive or defensive use.”  People v. Mendival, 3 Cal. Rptr. 2d 566, 574 (1992).  This enhancement is different from other enhancements like section 12022.5 which calls for a larger sentence enhancement when the defendant personally uses the firearm.

In most jurisdictions, this sort of law would not raise Second Amendment concerns.  Many states have adopted an intermediate scrutiny approach to laws that restrict the use and possession of firearms.  California seems to be one of these states.  See People v. Ellison, 128 Cal. Rptr. 245, 249-250 (2011).  Under the intermediate scrutiny approach, a law may infringe on the Second Amendment right to keep and bear arms if the law serves an important governmental interest and is substantially related to achieving that interest.

Regulations that affect firearm possession in the home may be more problematic – at least from the perspective of District of Columbia v. Heller (554 U.S. 570).  In Heller, the Court noted that laws that ban firearms that are kept in the home for purposes of self-defense will fail constitutional muster no matter what level of scrutiny courts apply. (628-29).  It is not yet clear how far courts are willing to take this strong language.  I discuss this provision and how it relates to student housing here, but in general there has been a lack of emphasis on this part of Heller.

Heller and its language on the home is relevant to the California gun possession enhancement, and while it may not render the law unconstitutional, it certainly seems to complicate some instances of its application -- instances that I explore in depth after the break.

California Crimes, Enhancements, and Other Strange Things

In doing some research at work, I ran across California’s law against assault with a firearm (Cal. Pen. Code § 245(a)(2)).  California’s assault statute (Cal. Pen. Code § 245) penalizes assault with a deadly weapon, assault with an amount of force likely to cause great bodily injury, and assault with a firearm equally: calling for a sentence of two, three, or four years imprisonment for each of these crimes.  This seems interesting, considering that these crimes all seem to be of varying degrees of dangerousness, with firearms seeming most likely to cause death, followed by deadly weapons such as knives, batteries, bicycle footrests, and dogs, (See In re David V., 223 P.3d 603, 607 (Cal. 2010) (mentioning that batteries and bicycle footrests may be deadly weapons) and People v. Nealis, 283 Cal. Rptr. 376, 379 (Cal. Super. 1991) (a dog may be a deadly weapon)), followed by fists that might be found to carry the potential for great bodily injury (See People v. Aguilar, 945 P.2d 1204, 1206-1207 (Cal. 1997)).  Because the potential for death is probably higher when the weapon employed is a firearm, it might make sense to attach a higher sentence to the crime of assault with a firearm.

The California Legislature has done this, albeit in a strange, roundabout way.  Rather than simply increasing the sentence for the § 245(a)(2) crime of assault with a firearm, the legislature enacted Penal Code section 12022.5, which enhances the sentence for any crime that involves the personal use of a firearm.  In People v. Ledesma, 939 P.2d 1310 (1997), the California Supreme Court recognized that this enhancement serves the purpose of heightening sentences for the apparently more severe crime of assault with a firearm.  The Court took this analysis so far that it concluded that the enhancement was mandatory in any 245(a)(2) case involving personal use of a firearm, despite the fact that §12022.5(d) stated that the enhancement may apply to §245 (an interpretation that Justice Mosk criticized in his dissent).  The language of §12022.5(d) now reads that the enhancement “shall” imply, making the Ledesma court’s interpretation less controversial today.

All of this has led to an interesting state of the law where a defendant’s punishment for the crime of assault with a firearm will often be less severe than the punishment for using a weapon in the commission of the crime.  The middle-term sentence for assault with a firearm is three years, while the middle-term sentence for the §12022.5 enhancement is four years.  Remember also that this enhancement is for personally using a firearm while assaulting somebody with a firearm.

The courts note that the enhancement will not always follow from the conviction.  While this is logically true, practically a failure to find for the enhancement is likely the very infrequent exception to the rule.

As far as California law goes, Penal Code section 654 typically bars multiple punishments for the same act.  This section is a non-issue in the case of firearm enhancements on assault with a firearm convictions, both because the enhancement statute explicitly and mandatorily applies itself to the assault convictions and because the enhancement’s more recent enactment and revisions take precedence in the interpretation of the conflicting statutes.

While this post may be stating the obvious for some, these laws are an interesting illustration of the piecemeal approach that legislatures take toward achieving their goals.