The Supreme Court today affirmed rulings of two district court judges in cases in which they had granted downward departures from the federal sentencing guidelines. One case involved crack, the other ecstasy.

The cases are Kimbrough v. U.S., 06-6330 (opinion here, pdf) and Gall v. U.S., 06-7949, opinion here (pdf).

In Kimbrough, the Court had imposed a 15 year sentence instead of the 19 to 22 years called for by the guidelines. In Gall, the Court granted probation instead of a 30 to 37 month sentence.

Scotus Blog explains the decisons. Law Prof Doug Berman of Sentencing Law and Policy is very excited and will have a lot of commentary as soon as he's digested the opinions.

Tomorrow, the U.S. Sentencing Commission will announce its decision on whether its recent crack cocaine guideline reduction will be retroactive and thus apply to the 19,500 crack offenders now in federal prison.

Update: Two quotes from Kimbraugh on the difference between mandatory minimums and guidelines and ability of judges to consider the disparity between crack and powder cocaine penalties:

Mississippi has an interesting judicial institution known as a justice court:

The mission of the Justice Court Clerk's office is to effectively serve the public by processing civil actions not to exceed $2,500.00 and misdemeanor criminal charges in accordance with section 9-11-11 of the Mississippi Code.

An individual appearing before a justice court may file either a criminal charge or a civil suit. A plaintiff who seeks only money can start what amounts to a small claims action. If the complaint "involves the violation of a criminal statute," the complaining party can prepare "an affidavit charging criminal activity as defined by Mississippi law."

Where probable cause is shown in the affidavit to believe that the person charged committed the crime, the accused will be arrested, tried, and if found guilty, punished as prescribed by law. The punishment may include fines and/or confinement. Some form of restitution to the victim may or may not be forthcoming if the accused is found guilty.

These are serious consequences, and those unfortunate persons who find themselves charged in a Mississippi justice court must be shocked to learn that the only qualification to be a judge in a justice court is a high school diploma. A task force has suggested "reforms" that fail to address the kind of legal training required to assure that criminal defendants receive a fair trial. The task force recommends that future justice court judges have:

It's common to see signs on courtroom doors instructing those who enter to shut off their cell phones. Often those signs are accompanied by a warning: if your cell phone rings audibly, it will be confiscated. (The judicial authority to steal an offending cell phone is unclear, but who wants to fight that battle?)

Fortunately, it isn't common for a judge to arrest everyone in the courtroom when nobody will admit ownership of a ringing phone.

[Robert] Restaino, who became a full-time judge in 2002 after serving part-time since 1996, was hearing domestic violence cases when a phone rang. "Everyone is going to jail," the judge said. "Every single person is gong to jail in this courtroom unless I get that instrument now. If anybody believes I'm kidding, ask some of the folks that have been here for a while. You are all going."

When no one came forward, the judge ordered the group into custody and they were taken by police to the city jail, where they were searched and packed into crowded cells. Fourteen people who could not post bail were shackled and bused to the Niagara County Jail in Lockport, a 30-minute drive away.

A judge who thinks mass jailings are the best way to respond to his own irritation -- without probable cause or even an individualized suspicion that each of the 46 detainees had done something wrong -- deserves to lose his job. Thankfully, Restaino lost his.

Finally. After almost 70 years, the Supreme Court has agreed to decide a case that may decide, once and for all, whether the Second Amendment confers an individual right to bear arms.

I believe it does. The Second Amendment provides:

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

There are three principal views: The individual view, collective view and an intermediate one.

Under the individual view, a person has a personal right to bear weapons or arms regardless of whether they are members of any militia or engaged in military service or training. We therefore may bring claims or defend claims based on that right, just as we can with other provisions of the Bill of Rights, such as the right to free speech or right to be free from unreasonable searches and seizures.

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My opinion of Gov. Bill Richardson has just grown by leaps and bounds. He has appointed veteran criminal defense lawyer Charlie Daniels (a real criminal defense lawyer, by the way, who truly believes in and has been passionate about defending the rights of the accused his entire career) to be a Justice on the New Mexico Supreme Court.

Charlie, whom I've known for 15 years or more (along with his wife Randi McGinn, a stellar criminal defense lawyer in her own right), will be sworn in on November 9.

Here's the announcement from the Governor's office (no link, I received it by e-mail.)

The Supreme Court heard oral argument today in U.S. v. Williams, a case challenging the constitutionality of the pandering provision of the PROTECT Act.

The American Constitution Society has a good explanation of the issues in the case.

At issue is the “pandering” provision in the 2003 Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act (“PROTECT Act”). The provision makes it illegal to solicit, distribute, present or offer “actual child pornography” — a sexually explicit visual representation of a real minor — or any visual representation of a minor engaging in obscene behavior.

More....

Scotus Blog reports:

The Supreme Court agreed on Monday to spell out when an individual engaged in “laundering” of crime proceeds has illegally concealed their real source — in effect, what it means to “launder” money. The issue arises in Cuellar v. U.S. (06-1456). This was the only case granted Monday. Click the following links to read the petition for certiorari, brief in opposition, reply brief, and amicus brief on behalf of the National Association of Criminal Defense Lawyers.

The question:

The Supreme Court will hear oral arguments today in two drug cases, Gall v. United States and Kimbrough v. United States.

The Kimbrough case will bring the disparate penalties for crack and powder into full focus. U.S. News today has some numbers on the sentencing disparity. The Gall case will define the circumstances under which a judge can sentence below strict federal sentencing guidelines.

In a nutshell, Gall's guidelines were 30 to 37 months for minor participation of limited duration in an ecstasy conspiracy. The Judge deviated from the Guidelines to a sentence of probation, the Government appealed and the 6th Circuit reversed the trial court.

The question in Gall (pdf):

More....

I have not read Justice Clarence Thomas' new memoir, "My Grandfather's Son." I do not know if I will. But one thing seems clear, Justice Thomas' book has reawakened the Anita Hill controversy. Perhaps that was not a wise thing for Justice Thomas to do. Hill responds to Thomas in the NYTimes:

ON Oct. 11, 1991, I testified about my experience as an employee of Clarence Thomas’s at the Equal Employment Opportunity Commission.

I stand by my testimony.

Justice Thomas has every right to present himself as he wishes in his new memoir, “My Grandfather’s Son.” He may even be entitled to feel abused by the confirmation process that led to his appointment to the Supreme Court.

But I will not stand by silently and allow him, in his anger, to reinvent me.

Strange that Justice Thomas would repick this fight. Anita Hill has been reawakened.

The first Monday of October marks the start of a new Supreme Court term. A New York Times editorial reviews some of the important issues soon to come before the Court and offers a useful tip for divining the likely outcome of those cases:

The best predictor of how they will vote is to ask: What outcome would a conservative Republican favor as a matter of policy?

Of course, conservative Republicans don't inevitably agree amongst themselves; e.g., the moneyed Republicans differ from the Christian-focused Republicans on immigration policy. Sadly, the Times predictor will probably work well for criminal justice and civil liberties (including voting rights) issues. Here are some of the important questions the Court has agreed to consider:

Rounding out the first two weeks of oral argument are a group of criminal cases, addressing the gulf between sentences for crack and powder cocaine, the latitude sentencing judges have to reduce prison time in routine cases, and whether trading drugs to obtain a gun fits the definition of gun "use" barred in the federal drug law. The Court will also weigh the constitutionality of New York's judicial selection system and the appeal of a Mexican death row inmate.

Briefs for cases to be argued in October are available here.

Sentencing Law and Policy first reported yesterday that Judge Paul Cassell of Utah is resigning from the federal bench to return to teaching and litigating on behalf of crime victims.

That's fine by me. His agenda has always been promoting victims' rights over those of defendants, eviscerating Miranda rights and pushing the death penalty, making light of false confessions and wrongful convictions.

That he wrote a good opinion in a child porn case finding application of the sentencing guidelines unconstitutional in that case, doesn't make up for the rest. He urged in another case that the guidelines be followed in all but exceptional cases and while he criticized the mandatory minimum 55 year sentence for Weldon Angelos, a 25 year old drug dealer, he imposed it anyway. (The Supreme Court later let the sentence stand.)

I bear no ill will towards Judge Cassell, but I'm glad he's going.

After Florentino Floro Jr was fired from the Philippines Supreme Court, bad things started to happen to the other justices, "including serious illnesses and car accidents." Floro has a simple explanation: one of the three elves with whom he hangs out is seeking revenge.

Floro says the person to blame for the mishaps is one of the elves, "Luis," a "king of kings" who is an avenger. He told the newspaper that the elves help him predict the future, but he has never consulted them when issuing judicial decisions.

Did the elves tell him he was going to be fired?