Category: Judicial Selection

Should Felons Decide What Sentences Felons Deserve?

by · Feb 25, 2021 2:06 pm

Sentencing Law and Policy has this thought-provoking post urging President Biden to make filling Sentencing Commission slots a priority, and recommending  —  you’ll never guess  —  “diversity.”  But it’s diversity of a notable kind.  The post’s final paragraph tells the story in only slightly scrubbed language:

In his pioneering 1972 book, Criminal Sentences: Law Without Order, Judge Marvin Frankel first advocated for a “Commission on Sentencing” to include “lawyers, judges, penologists, and criminologists, … sociologists, psychologists, business people, artists, and, lastly for emphasis, former or present prison inmates.”  As Judge Frankel explained, having justice-involved persons on a sentencing commission “merely recognizes what took too long to become obvious—that the recipients of penal ‘treatment’ must have relevant things to say about it.”  Judge Frankel’s insights remain ever so timely a half-century later, and the federal system can now follow a recent sound state example: Brandon Flood was appointed Secretary of the Pennsylvania Board of Pardons in 2019, not despite but largely because of his lived experience as an inmate and his numerous encounters with the criminal justice system.  President Biden’s could and should consider going even further by including multiple persons with diverse, direct experiences with U.S. justice systems in his nominations to the U.S. Sentencing Commission.

What to make of the suggestion that the inmates should decide how long other inmates remain in the asylum?

Continue reading . . .

To Pack or Not to Pack, That Is the Question

by · Oct 22, 2020 4:56 pm

That may be the question, but Joe Biden won’t be giving us the answer.  Instead, he’s going to create a commission to “study” the issue of court packing, and other supposed judicial “reforms,” and get back to us.

Creating a commission is one of the oldest dodges in DC, so I suppose I shouldn’t be surprised that Mr. Biden would recur to it  —  he having been in this town since the War in Vietnam.  But it’s still just a dodge. Continue reading . . .

U.S. Supreme Court Opens New Term

by · Oct 5, 2020 9:17 am

Today is the First Monday in October, the first day of the new term for the U.S. Supreme Court. As usual, the new cases the Court has taken up in its opening conference were announced last week, see this post, and today’s orders list contains a very long list of cases turned down. Along with shooting down the Stairway to SCOTUS suit against Led Zeppelin, there are a few other items of interest from the orders list. Continue reading . . .

Judge Barrett, Recusal, and Capital Cases

by · Sep 29, 2020 2:10 pm

The nomination of Seventh Circuit Judge Amy Coney Barrett to the Supreme Court has focused new attention on a 1998 law review article she co-authored with John Garvey, Catholic Judges in Capital Cases. This article is unlikely to be a roadblock to her confirmation, but it does raise a question that needs to be answered.

Right out of the gate, we should note what Professor Garvey, the senior author of the article, wrote in the WaPo last week. “It would hardly be reasonable to hold Barrett responsible for everything we said back then, when she was still a law student and the junior partner in the endeavor.” Quite right. Even as an indication of her views at the time, the junior partner does not typically decide the positions that will be taken. Further, one’s views on issues may change with time and experience. That was 22 years ago, and a lot of water has passed under her bridge since then. Continue reading . . .

Judge Lagoa and the Recusal Smear

by · Sep 22, 2020 3:02 pm

The confirmation process for Supreme Court Justices has gone far downhill over the years, beginning with the dirty attack on Judge Robert Bork in 1987. Anyone nominated to the high court can expect to be smeared. Now we seem to have gone a step further, where simply being on the “short list” brings out the smear-mongers.

Eleventh Circuit Judge Barbara Lagoa is on the short list. As far as I can determine from reading her opinions over the last two days, she appears to be a solid, mainstream jurist. She is under attack for not recusing herself from a case involving Florida’s felon re-enfranchising law. There is nothing to this attack. Continue reading . . .