Thursday, June 14, 2007

Free Scooter? Free Everybody? Land of the Free!

No, all Libby did was lie under oath about some details of a campaign to smear opponents of the Iraq war. To such media luminaries as Time's Joe Klein, the whole idea of imprisoning Libby is offensive: "Do we really want to spend our tax dollars keeping Scooter Libby behind bars?" Klein asks.

This question, again, is being asked in a nation that has nearly 2 1/2 million people behind bars - a large proportion of whom committed crimes that were less morally reprehensible, and almost infinitely less damaging to the nation, than Libby's lies.

But to Joe Klein, Libby just doesn't "look" like a criminal. Somebody - perhaps Paris Hilton - should remind Klein that looks aren't everything.

Source: HT Doc Berman

An "inspiring snippet":

In the Petitioner's case, the imposition of the mandatory minimum 10-year prison sentence without parole and sex offender registration for consensual oral sex between teenagers would be viewed by society as "cruel and unusual" in the constitutional sense of disproportionality, especially in light of Petitioner's having never been convicted of a prior crime....

If this Court, or any Court, cannot recognize the injustice of what has occurred here, then our court system has lost sight of the goal our judicial system has always strived to accomplish — Justice being served in a fair and equal manner.

The Atlanta Journal-Constitution now has this coverage of the state court ruling reducing the crime and sentence of Genarlow Wilson (basics here).

So then there is also this from the great Doc B:

I am, of course, excited that the Supreme Court has now taken up two new federal sentencing cases, Kimbrough from the Fourth Circuit and Gall from the Eighth Circuit, to deal with post-Booker sentencing issues (basics here). Based on a quick review (and helpful reader comments) and more from SCOTUSblog, it seems that that Gall is a partial replacement for the Claiborne case because it addresses a below-guideline sentence reversed by the Eighth Circuit. But unlike Claiborne, Gall is not a crack case, so Kimbrough was apparently taken to allow the Justices to address directly whether a district court may deviate from the guidelines based on a disaffinity for the harsh crack guidelines.

Perhaps the key and most significant fact in both Gall and Kimbrough is that the district court in both cases imposed a below-guideline sentence that a circuit court thereafter reversed as unreasonable. In sharp contrast, the Rita case still pending before SCOTUS (and still expected to be decided this term?) deals with a within-guideline sentence imposed by the district court and affirmed as presumptively reasonable by the Fourth Circuit. Also significant is that the Supreme Court apparently plans to hear Gall and Kimbrough under a normal schedule next Fall, but likely still will issue a ruling in Rita this month.

So, adding up these pieces, what does this likely mean for the future of federal sentencing law and post-Booker jurisprudence? I am still scratching my head, but let me venture a few ruminations:

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