Tuesday, March 03, 2009
Sunday, March 01, 2009
Ignoring the "Go Directly To Jail" Card
We've all heard by now of the lack of space in the jails in Hamilton County. Most of you have heard that the sheriff has initiated a sentence deferral program, whereby certain offenders are told to come back at a later day to serve a sentence of incarceration. Today's Enquirer reveals something that was fairly predictable: defendants aren't necessarily reporting as ordered. And according to the Enquirer, there's nothing that can be done to penalize them for remaining at large.
The situation is of some concern (but probably not as alarming as the Enquirer makes it out to be) to me. Yes, I'm a defense attorney and I'm never happy when someone is sentenced to jail--every jail sentence represents, to me, some form of societal failure or detriment. But I'm also a member of this community and a realist: sometimes, jail is the last, best option for punishment and deterrence. I think there are a couple things that could be done to encourage people to show up to serve a deferred sentence. But before I offer my suggestions, let's clear up some potential misconceptions about the Hamilton County criminal justice system.
First, it's extremely difficult to be sentenced to incarceration for a misdemeanor offense in this county. It happens in one of two situations: either the offense is particular violent (an assault or domestic violence conviction that goes beyond the "garden variety" version of those offenses), or the defendant is a recidivist. In the latter circumstance, sometimes we're talking about someone who was placed on probation and is now on a second or third probation violation, or someone who has multiple, close-in-time convictions similar to the one for which s/he is now being sentenced.
Second, the Enquirer reports deferral is only for "non-violent" offenders. If this is true today, it has not always been true over the past three months. Also, space is especially tight for female offenders. (My understanding is that this is because when Queensgate closed, the first floor at 1617 Reading Road was converted to a men's jail, decreasing the number of beds for women system-wide.)
Third, right now, judges don't always know whose sentence will be deferred and who will go in immediately. After the court imposes sentence, the defendant is taken from the courtroom by the criminal bailiff to the holding cell on the sixth floor of the courthouse, where s/he is thoroughly patted down. From there, s/he is taken across the street (via a connecting bridge) to the Justice Center, where s/he is processed. S/he is then informed if his or her sentence is being deferred.
So how do we get convicted offenders to show up to serve their jail sentences? There is no real "carrot" involved here; instead, the justice system has to find a "stick." I think there are four ways judges and prosecutors can influence defendants' behavior post-sentencing but pre-incarceration:
1. Charging escape. I haven't researched the caselaw on this, but my quick reading of Ohio Revised Code 2921.34 make me believe people who miss their deferral date could be charged with escape. This is because that crime applies to one who "purposely fail[s] to return to detention . . . following temporary leave granted for a specific purpose or limited period." If the problem is that the "temporary leave" is granted by the sheriff rather than the court, then the court could, upon request of the sheriff, order the temporary leave (in other words, the court "furloughs" the defendant). Of course, in this scenario, escape is a misdemeanor offense (meaning that the defendant would serve his time in the county jail rather than prison), so this could further exacerbate the space shortage, but the possibility of an additional six-month sentence is strong incentive to show up as ordered by the sheriff.
2. Charging contempt. As part of sentences of incarceration, judges could begin ordering defendants to comply with all sheriff-imposed reporting requirements (e.g., calling or coming in on the deferred sentence date). If the defendant fails to do this, the court could then impose an additional sentence for contempt. Again, this requires more utilization of bed space to initiate and more resources (this would be "indirect" contempt, so a hearing would be required). But the hope is that the mere possibility of additional incarceration would deter individuals from skipping out on their sentences.
3. Detail eligibility. If you've been to the Justice Center or the courthouse, you've no doubt seen inmates wandering about, seemingly unsupervised, collecting trash, mopping floors, and performing other custodial functions. These men are on "work details," for which they typically get two or three days of credit for every one day of detail work. (You generally hear this called "2-for-1" or "3-for-1.") This means someone who is sentenced to six months in jail can get out in as little as six months, or even less. Judges can make defendants ineligible for details, but rarely do so. The sheriff should make any individual who fails to report as ordered ineligible for work details that decrease the amount of time to be served. (I'd suggest the same thing for treatment programs that make mitigation by a judge likely, but (a) we should never make someone ineligible for treatment, and (b) last I knew, sentences were not being deferred for individuals who were serving their time in programs like men's extended treatment.)
4. Conditional sentences. This requires the judge and the sheriff to work together, so a judge will know, at the time of sentencing, whether a defendant's sentence will be deferred by the sheriff. If the sentence is to be deferred, the judge could announce a conditional sentence. For instance, if the charge is a first-degree misdemeanor (carrying a possible 180 days in jail) and the court wants to impose a 90-day sentence, if the sentence is to be deferred then the court could announce its intent to impose 90 days and instruct the defendant to report back to the courtroom for actual sentencing and surrender at the end of the deferral. The court would instruct the defendant that if s/he fails to appear for sentence, the court will impose the maximum 180-day sentence instead of the 90 promised.
No one would describe me as a "law-and-order" guy. But failing to obey a court order--like a sentence--should have consequences. My suggestions assume, of course, that judges are using incarceration only where appropriate: for particularly brutal crimes or as the last sentencing option, only when a defendant has repeatedly demonstrated, over time, non-amenability to treatment or other, more rehabilitative opportunities.
The situation is of some concern (but probably not as alarming as the Enquirer makes it out to be) to me. Yes, I'm a defense attorney and I'm never happy when someone is sentenced to jail--every jail sentence represents, to me, some form of societal failure or detriment. But I'm also a member of this community and a realist: sometimes, jail is the last, best option for punishment and deterrence. I think there are a couple things that could be done to encourage people to show up to serve a deferred sentence. But before I offer my suggestions, let's clear up some potential misconceptions about the Hamilton County criminal justice system.
First, it's extremely difficult to be sentenced to incarceration for a misdemeanor offense in this county. It happens in one of two situations: either the offense is particular violent (an assault or domestic violence conviction that goes beyond the "garden variety" version of those offenses), or the defendant is a recidivist. In the latter circumstance, sometimes we're talking about someone who was placed on probation and is now on a second or third probation violation, or someone who has multiple, close-in-time convictions similar to the one for which s/he is now being sentenced.
Second, the Enquirer reports deferral is only for "non-violent" offenders. If this is true today, it has not always been true over the past three months. Also, space is especially tight for female offenders. (My understanding is that this is because when Queensgate closed, the first floor at 1617 Reading Road was converted to a men's jail, decreasing the number of beds for women system-wide.)
Third, right now, judges don't always know whose sentence will be deferred and who will go in immediately. After the court imposes sentence, the defendant is taken from the courtroom by the criminal bailiff to the holding cell on the sixth floor of the courthouse, where s/he is thoroughly patted down. From there, s/he is taken across the street (via a connecting bridge) to the Justice Center, where s/he is processed. S/he is then informed if his or her sentence is being deferred.
So how do we get convicted offenders to show up to serve their jail sentences? There is no real "carrot" involved here; instead, the justice system has to find a "stick." I think there are four ways judges and prosecutors can influence defendants' behavior post-sentencing but pre-incarceration:
1. Charging escape. I haven't researched the caselaw on this, but my quick reading of Ohio Revised Code 2921.34 make me believe people who miss their deferral date could be charged with escape. This is because that crime applies to one who "purposely fail[s] to return to detention . . . following temporary leave granted for a specific purpose or limited period." If the problem is that the "temporary leave" is granted by the sheriff rather than the court, then the court could, upon request of the sheriff, order the temporary leave (in other words, the court "furloughs" the defendant). Of course, in this scenario, escape is a misdemeanor offense (meaning that the defendant would serve his time in the county jail rather than prison), so this could further exacerbate the space shortage, but the possibility of an additional six-month sentence is strong incentive to show up as ordered by the sheriff.
2. Charging contempt. As part of sentences of incarceration, judges could begin ordering defendants to comply with all sheriff-imposed reporting requirements (e.g., calling or coming in on the deferred sentence date). If the defendant fails to do this, the court could then impose an additional sentence for contempt. Again, this requires more utilization of bed space to initiate and more resources (this would be "indirect" contempt, so a hearing would be required). But the hope is that the mere possibility of additional incarceration would deter individuals from skipping out on their sentences.
3. Detail eligibility. If you've been to the Justice Center or the courthouse, you've no doubt seen inmates wandering about, seemingly unsupervised, collecting trash, mopping floors, and performing other custodial functions. These men are on "work details," for which they typically get two or three days of credit for every one day of detail work. (You generally hear this called "2-for-1" or "3-for-1.") This means someone who is sentenced to six months in jail can get out in as little as six months, or even less. Judges can make defendants ineligible for details, but rarely do so. The sheriff should make any individual who fails to report as ordered ineligible for work details that decrease the amount of time to be served. (I'd suggest the same thing for treatment programs that make mitigation by a judge likely, but (a) we should never make someone ineligible for treatment, and (b) last I knew, sentences were not being deferred for individuals who were serving their time in programs like men's extended treatment.)
4. Conditional sentences. This requires the judge and the sheriff to work together, so a judge will know, at the time of sentencing, whether a defendant's sentence will be deferred by the sheriff. If the sentence is to be deferred, the judge could announce a conditional sentence. For instance, if the charge is a first-degree misdemeanor (carrying a possible 180 days in jail) and the court wants to impose a 90-day sentence, if the sentence is to be deferred then the court could announce its intent to impose 90 days and instruct the defendant to report back to the courtroom for actual sentencing and surrender at the end of the deferral. The court would instruct the defendant that if s/he fails to appear for sentence, the court will impose the maximum 180-day sentence instead of the 90 promised.
No one would describe me as a "law-and-order" guy. But failing to obey a court order--like a sentence--should have consequences. My suggestions assume, of course, that judges are using incarceration only where appropriate: for particularly brutal crimes or as the last sentencing option, only when a defendant has repeatedly demonstrated, over time, non-amenability to treatment or other, more rehabilitative opportunities.
Hook Us Up, Kroger: An Open Letter to Mr. Dillon
David Dillon
CEO, The Kroger Company
1014 Vine Street
Cincinnati, OH 45202
RE: Downtown Cincinnati
Dear Mr. Dillon:
I write concerning the critical gap in the grocery market in downtown Cincinnati. As a downtown resident and worker, this is of serious concern to me. But more importantly, the issue raises a pressing business opportunity for your company.
Kroger has regularly been criticized for its only downtown/Over-the-Rhine store at 1420 Vine Street. We've even done our fair share of lambasting at the Cincinnati Blog. We certainly appreciate the company's efforts to revitalize the store during a few years ago. Ultimately, though, the store's footprint is simply too small for the store to one that your company can be proud to have in the shadow of your corporate headquarters.
A few days ago, because I was "in the neighborhood," I made my first visit to your "Fresh Fare" store in Kenwood. I'd never been to a "Fresh Fare" Kroger; I was impressed. Comparing the Vine Street Kroger to the Kenwood store is like comparing a summer weekend festival's attractions to those at King's Island. Wow. Wow, wow, wow.
The people of downtown and Over-the-Rhine deserve a quality grocery store from the grocery company so closely identified with the Queen City. But that's an argument that's been made for a long time, and one that repeatedly falls on deaf ears in the Kroger hierarchy. So let's focus on why Kroger's interests are served by an expanded downtown location.
More people live downtown and in Over-the-Rhine than did a few years ago. And while the Vine Street store is sufficient if we need a few things, it's not good enough for weekly shopping. That means that people who can do so drive outside of downtown to buy groceries. But once I'm leaving downtown, the chance that I go to Kroger (either to Bellevue or Hyde Park, most likely) is only one-in-three, at best. I might go to Meijer. I might go to Bigg's. Or maybe, I'll get wild and crazy and head all the way out to Jungle Jim's.
There's land available for a Fresh Fare Kroger. There's a big parking lot on the eastern edge of downtown known as "Broadway Commons." The owners don't seem really married to hanging onto the property. They wanted to sell to permit the building of the baseball and football stadia there. More recently, they were hoping a casino company would buy them out. I'm sure they'd sell to Kroger.
Think about the business a Fresh Fare store would do at that location. New residential buildings are opening all time in downtown and OTR. Within the next half-decade, residents will start occupying housing in the Banks. Kroger should already have a store in place by then; it's much easier to attract business from those looking to develop habits, rather than to change pre-existing habits--which is what will happen if Kroger continues to take a wait-and-see approach to downtown residency.
But it's not just your neighbors who would frequent a Fresh Fare store. Think about all the people who, on their way home from downtown jobs, would stop in your store to pick up dinner. Broadway Commons is on the way to I-71 from downtown. It's perfect!
I realize it's tough to think about expansion in this economy. But downtown and OTR is one of the few areas to which people continue to relocate. Kroger should take advantage of this, rewarding both itself with lots of new business and longtime OTR residents who have steadfastly patronized the vastly inferior OTR store out of loyalty to your company.
Kroger is a great Cincinnati company. It should have a great Cincinnati location.
Sincerely,
Donald Caster
CEO, The Kroger Company
1014 Vine Street
Cincinnati, OH 45202
RE: Downtown Cincinnati
Dear Mr. Dillon:
I write concerning the critical gap in the grocery market in downtown Cincinnati. As a downtown resident and worker, this is of serious concern to me. But more importantly, the issue raises a pressing business opportunity for your company.
Kroger has regularly been criticized for its only downtown/Over-the-Rhine store at 1420 Vine Street. We've even done our fair share of lambasting at the Cincinnati Blog. We certainly appreciate the company's efforts to revitalize the store during a few years ago. Ultimately, though, the store's footprint is simply too small for the store to one that your company can be proud to have in the shadow of your corporate headquarters.
A few days ago, because I was "in the neighborhood," I made my first visit to your "Fresh Fare" store in Kenwood. I'd never been to a "Fresh Fare" Kroger; I was impressed. Comparing the Vine Street Kroger to the Kenwood store is like comparing a summer weekend festival's attractions to those at King's Island. Wow. Wow, wow, wow.
The people of downtown and Over-the-Rhine deserve a quality grocery store from the grocery company so closely identified with the Queen City. But that's an argument that's been made for a long time, and one that repeatedly falls on deaf ears in the Kroger hierarchy. So let's focus on why Kroger's interests are served by an expanded downtown location.
More people live downtown and in Over-the-Rhine than did a few years ago. And while the Vine Street store is sufficient if we need a few things, it's not good enough for weekly shopping. That means that people who can do so drive outside of downtown to buy groceries. But once I'm leaving downtown, the chance that I go to Kroger (either to Bellevue or Hyde Park, most likely) is only one-in-three, at best. I might go to Meijer. I might go to Bigg's. Or maybe, I'll get wild and crazy and head all the way out to Jungle Jim's.
There's land available for a Fresh Fare Kroger. There's a big parking lot on the eastern edge of downtown known as "Broadway Commons." The owners don't seem really married to hanging onto the property. They wanted to sell to permit the building of the baseball and football stadia there. More recently, they were hoping a casino company would buy them out. I'm sure they'd sell to Kroger.
Think about the business a Fresh Fare store would do at that location. New residential buildings are opening all time in downtown and OTR. Within the next half-decade, residents will start occupying housing in the Banks. Kroger should already have a store in place by then; it's much easier to attract business from those looking to develop habits, rather than to change pre-existing habits--which is what will happen if Kroger continues to take a wait-and-see approach to downtown residency.
But it's not just your neighbors who would frequent a Fresh Fare store. Think about all the people who, on their way home from downtown jobs, would stop in your store to pick up dinner. Broadway Commons is on the way to I-71 from downtown. It's perfect!
I realize it's tough to think about expansion in this economy. But downtown and OTR is one of the few areas to which people continue to relocate. Kroger should take advantage of this, rewarding both itself with lots of new business and longtime OTR residents who have steadfastly patronized the vastly inferior OTR store out of loyalty to your company.
Kroger is a great Cincinnati company. It should have a great Cincinnati location.
Sincerely,
Donald Caster
Wednesday, February 25, 2009
State of the City
I attended Mayor Mark Mallory's "State of the City" address this evening. (Text here, courtesy the Enquirer.) I'm not sure how the speech will read, but I can tell you that the mayor's delivery made clear that his top priority this year is the streetcar proposal.
Mayor Mallory isn't typically a fire-and-brimstone kind of speaker, but he got downright fiery when he talked about the streetcar. In fact, that was probably the only thing he got fiery about. He noted the development and investment streetcars brought in Tampa, Charlotte, and Seattle, and insisted that the "naysayers" not be permitted to "derail" the project.
There was also an interesting moment towards the end of his address. Mallory spent much of his speech recognizing and thanking various community leaders. In discussing the uptick of convention business last year, Mallory thanked Chris Smitherman for his leadership with respect to last summer's national NAACP convention. While the mayor was, I think, trying to be gracious to the man who has very recently become one of his most outspoken critics, it was clear that the audience wasn't sure how to respond. While the other individuals Mallory mentioned got rounds of applause that were fairly robust, the response to the mention of Smitherman was fairly tepid.
All in all, a good night for Mallory, I think. (And by the way, he affirmed that the "first" phase of the streetcar plan is to include the uptown connector.)
A postscript: I just saw on the late news that Monzel, who delivered the "Republican response" (or just a response?), took the opportunity to reject the streetcar proposal. It's not a new position for him, but makes me wonder: has the HamCo GOP officially staked out an anti-streetcar position? As our regular readers know, I remain ambivalent about a streetcar plan, but would be surprised if the GOP were going to foist an anti-streetcar platform on its five candidates this fall, as I'm not sure it will help them. (And Republican Councilmember Ghiz, if I recall correctly, voted for the streetcar.) And if the party doesn't have a position, then something's amiss: if Monzel was giving a truly "Republican response," then why would he set out his personal position, rather than the party's positions?
Interestingly, Jane Pendegrast suggests that Monzel was to speak for the GOP (quoting Chair Alex Triantafilou as saying that the "opposite party" hadn't given such a response in a while), and Triantafilou refers to the remarks both as "Chris Monzel's response" and "our response." So for whom was Councilman Monzel speaking this evening: just himself, or the entire HamCo GOP?
Mayor Mallory isn't typically a fire-and-brimstone kind of speaker, but he got downright fiery when he talked about the streetcar. In fact, that was probably the only thing he got fiery about. He noted the development and investment streetcars brought in Tampa, Charlotte, and Seattle, and insisted that the "naysayers" not be permitted to "derail" the project.
There was also an interesting moment towards the end of his address. Mallory spent much of his speech recognizing and thanking various community leaders. In discussing the uptick of convention business last year, Mallory thanked Chris Smitherman for his leadership with respect to last summer's national NAACP convention. While the mayor was, I think, trying to be gracious to the man who has very recently become one of his most outspoken critics, it was clear that the audience wasn't sure how to respond. While the other individuals Mallory mentioned got rounds of applause that were fairly robust, the response to the mention of Smitherman was fairly tepid.
All in all, a good night for Mallory, I think. (And by the way, he affirmed that the "first" phase of the streetcar plan is to include the uptown connector.)
A postscript: I just saw on the late news that Monzel, who delivered the "Republican response" (or just a response?), took the opportunity to reject the streetcar proposal. It's not a new position for him, but makes me wonder: has the HamCo GOP officially staked out an anti-streetcar position? As our regular readers know, I remain ambivalent about a streetcar plan, but would be surprised if the GOP were going to foist an anti-streetcar platform on its five candidates this fall, as I'm not sure it will help them. (And Republican Councilmember Ghiz, if I recall correctly, voted for the streetcar.) And if the party doesn't have a position, then something's amiss: if Monzel was giving a truly "Republican response," then why would he set out his personal position, rather than the party's positions?
Interestingly, Jane Pendegrast suggests that Monzel was to speak for the GOP (quoting Chair Alex Triantafilou as saying that the "opposite party" hadn't given such a response in a while), and Triantafilou refers to the remarks both as "Chris Monzel's response" and "our response." So for whom was Councilman Monzel speaking this evening: just himself, or the entire HamCo GOP?
CincyPAC on 55KRC
This past Sunday night City Talk Radio's 2nd half of the show included members of CincyPac and gave a basic overview of the organization. On the link you can find a podcast of the full show, including an interview with the team behind "Cooking with Caitlin," which according to the show will appear weekly on Fountain Square over the summer.
On CincyPac I am still not really sure of its purpose. Their website does list out a description. I don't know that it helps me understand the ultimate goal. If they are a PAC and are about raising money to elect candidates, then I get it. The mission then would be to get cash in into the campaigns of candidates who favor "YP issues". Getting money is hard business, but it is a focused goal that can be completed in many ways, but those methods are quantifiable.
If the organization is trying to be an issue advocacy group that has a social component, then I don't get it. I don't have a problem with that type of group, but that will open it up to a bureaucracy that will slow them down and likley hamper efforts to get people to give money to the PAC to then give to candidates. Where the problem may come in is when money comes into the PAC, what portion will be given to candidates and what portion will go to Issue Advocacy and the social component? I don't have a problem with trying to be more than one thing, I just want the goals to have a clear hierarchy. Who is going to get most of the contributions is a key element to know prior to giving a contribution.
The debate on what "YP issues" means is another big contention that is so very debatable. That hurts the group partially because it is a vague goal and one people are going to have a hard time wanting to support. PACs do better when they have one goal, where the reason for giving money is singular, like Emily's List. There is not a single YP issue to focus on, but there needs to be clearer message on the issues being considered, if getting money is the goal. A focused message will be the only way to get significant contributions.
On CincyPac I am still not really sure of its purpose. Their website does list out a description. I don't know that it helps me understand the ultimate goal. If they are a PAC and are about raising money to elect candidates, then I get it. The mission then would be to get cash in into the campaigns of candidates who favor "YP issues". Getting money is hard business, but it is a focused goal that can be completed in many ways, but those methods are quantifiable.
If the organization is trying to be an issue advocacy group that has a social component, then I don't get it. I don't have a problem with that type of group, but that will open it up to a bureaucracy that will slow them down and likley hamper efforts to get people to give money to the PAC to then give to candidates. Where the problem may come in is when money comes into the PAC, what portion will be given to candidates and what portion will go to Issue Advocacy and the social component? I don't have a problem with trying to be more than one thing, I just want the goals to have a clear hierarchy. Who is going to get most of the contributions is a key element to know prior to giving a contribution.
The debate on what "YP issues" means is another big contention that is so very debatable. That hurts the group partially because it is a vague goal and one people are going to have a hard time wanting to support. PACs do better when they have one goal, where the reason for giving money is singular, like Emily's List. There is not a single YP issue to focus on, but there needs to be clearer message on the issues being considered, if getting money is the goal. A focused message will be the only way to get significant contributions.
Tuesday, February 24, 2009
Supreme Court Decisions Not Always About "Politics"
A brief diversion from Cincinnati blogging for a moment of blawging.
Today, the Supreme Court decided United States v. Hayes, in which the Court was called upon to determine what Congress meant by "a misdemeanor crime of domestic violence." The facts are simple: in 1994, Randy Edward Hayes was convicted in a West Virginia court of battery. (In Ohio, we'd call it assault.) The victim was Hayes's wife. In 1996, Congress amended the Gun Control Act to make it unlawful for anyone convicted of a misdemeanor crime of domestic violence to own a firearm. And in 2004, Hayes was found to be in possession of a firearm and charged with violating 18 U.S.C. 922(g), a crime that carries a possible 10-year sentence.
Hayes's lawyers moved to dismiss the indictment. After all, he wasn't convicted of domestic violence--he was convicted of battery. But the district court construed the federal statute's definition of "crime of domestic violence" broadly, ruling that regardless of whether the crime of which Hayes was found guilty required proof of a domestic relationship, Hayes could be prosecuted under federal law if the federal government could prove (beyond a reasonable doubt) that the victim and Hayes shared a domestic relationship back in 1994.
Eventually, the case made its way to the US Supreme Court. I know what you're thinking. It's a criminal case. The "liberals" will bend over backwards to help him beat the rap. The "conservatives" will want to lock him up and throw away the key. A moderate or two will decide Hayes's fate. Because federal law is all about politics, right? Well, it's good you thought that, but you're wrong.
The Supreme Court voted 7-2 to uphold the conviction. The Court's decision was written by (wait for it) Justice Ginsburg. The two dissenters? Chief Justice Roberts and Justice Scalia. The majority concluded that Congress, when it wrote "crime of domestic violence," meant to include any crime that could be domestic violence, regardless of whether it was charged or prosecuted that way. The Chief Justice (with whom I agree) argued that such a construction strains logic. He also argued that since the statute is ambiguous, any doubt has to be resolved in favor of the defendant (a concept known as the rule of lenity).
So for those of you (on either the left or the right) who insist that Supreme Court decision-making is just politics in another arena, remember cases like this. While the justices no doubt have ideological views that shape their rulings, they are, in fact, striving to uphold the rule of law, not just to further a particular political cause.
And finally: don't wring your hands too much over Randy Hayes's fate. He wasn't sent to prison; instead, the judge sentenced him to five years' probation.
Today, the Supreme Court decided United States v. Hayes, in which the Court was called upon to determine what Congress meant by "a misdemeanor crime of domestic violence." The facts are simple: in 1994, Randy Edward Hayes was convicted in a West Virginia court of battery. (In Ohio, we'd call it assault.) The victim was Hayes's wife. In 1996, Congress amended the Gun Control Act to make it unlawful for anyone convicted of a misdemeanor crime of domestic violence to own a firearm. And in 2004, Hayes was found to be in possession of a firearm and charged with violating 18 U.S.C. 922(g), a crime that carries a possible 10-year sentence.
Hayes's lawyers moved to dismiss the indictment. After all, he wasn't convicted of domestic violence--he was convicted of battery. But the district court construed the federal statute's definition of "crime of domestic violence" broadly, ruling that regardless of whether the crime of which Hayes was found guilty required proof of a domestic relationship, Hayes could be prosecuted under federal law if the federal government could prove (beyond a reasonable doubt) that the victim and Hayes shared a domestic relationship back in 1994.
Eventually, the case made its way to the US Supreme Court. I know what you're thinking. It's a criminal case. The "liberals" will bend over backwards to help him beat the rap. The "conservatives" will want to lock him up and throw away the key. A moderate or two will decide Hayes's fate. Because federal law is all about politics, right? Well, it's good you thought that, but you're wrong.
The Supreme Court voted 7-2 to uphold the conviction. The Court's decision was written by (wait for it) Justice Ginsburg. The two dissenters? Chief Justice Roberts and Justice Scalia. The majority concluded that Congress, when it wrote "crime of domestic violence," meant to include any crime that could be domestic violence, regardless of whether it was charged or prosecuted that way. The Chief Justice (with whom I agree) argued that such a construction strains logic. He also argued that since the statute is ambiguous, any doubt has to be resolved in favor of the defendant (a concept known as the rule of lenity).
So for those of you (on either the left or the right) who insist that Supreme Court decision-making is just politics in another arena, remember cases like this. While the justices no doubt have ideological views that shape their rulings, they are, in fact, striving to uphold the rule of law, not just to further a particular political cause.
And finally: don't wring your hands too much over Randy Hayes's fate. He wasn't sent to prison; instead, the judge sentenced him to five years' probation.
Monday, February 23, 2009
McCafferty Trial Raises Interesting Media Issues
The Enquirer describes an ongoing dispute between the local media and the Campbell County (Ky) Circuit Court over whether and to what extent the media should be permitted to broadcast the trial of Cheryl McCafferty, who is accused of murdering her husband.
Based on the Enquirer's reporting, it appears that the following happened: Judge Julie Reinhardt Ward initially agreed to permit Dateline NBC to tape the entire trial, and then to broadcast it (in all likelihood, condensed to run in an hour) at some later time. Dateline set up its cameras and subsequently agreed to act as something of a pool photographer, with their video being fed live to a television set up in a media room in the courthouse.
Apparently, the local media then announced its intention to pick up the pool feed and either broadcast it or "stream" it (broadcast it on the internet) live. It seems others intended to blog the trial, perhaps even from the courtroom. Judge Ward determined that live coverage was not in the interest of justice (the Enquirer doesn't tell us why), and pulled the plug on everything, ordering Dateline out of the courtroom and banning all electronic devices.
The situation raises interesting questions about what the right to a public trial really means. (Remember, the public trial right is not just--or even primarily--about the press's right to cover a trial, but is instead about the defendant's Sixth Amendment right to be publicly tried). I have little doubt that Judge Ward can do exactly what she's done: ban all recording devices from her courtroom. Assuming that Kentucky law doesn't provide otherwise, the federal courts have declined to recognize a right (either for a criminal defendant under the Sixth Amendment or the media under the First) to have a publicly broadcast trial. That's why federal courts remain off-limits to televised trials. Whether such blanket prohibitions are a good idea is a question I leave unanswered at this time.
I'm also fairly certain that Judge Ward could impose limits on the methods of "broadcasting" a trial. I would expect a judge to seriously consider banning live-blogging a trial from a courtroom. This isn't because "bloggers" or journalists who blog are somehow less important, but instead because of the disruptive effect people typing on their cellphones or laptops could have during trial. The jury could be distracted by this, and could also start to believe that when it sees a member of the media typing away, something important may have just happened. It's not clear, however, why the judge would ban live-blogging the video feed from the media room, where the court would not be disturbed.
I'm not sure, however, that Judge Ward can do what I think she might like to: permit Dateline NBC to record the proceedings but prohibit live broadcasts. This is far from my area of expertise, but it seems that once the court opens the proceedings to cameras, it has to permit the media to do as it wishes with the video. If that means live TV coverage or live streaming on the web, then so be it. Moreover, it's not clear what the fear is: that the jury would be tainted when it goes home at night? Jurors are supposed to avoid contact with those who would try to discuss the trial with them, and the law presumes that jurors follow their instructions. And if that's really a fear, then the jury should be sequestered: nothing the judge can do will prevent the local media from reporting on what happens (and in some cases, likely mis-reporting what happens) each day.
Of course, that's just my tentative take and I haven't taken the time to research the issue. But it's an interesting conundrum the court and the media have created, nonetheless. And one has to feel bad for the jurors, who were in court for all of ten minutes today. Hope they brought their Sudoku.
Based on the Enquirer's reporting, it appears that the following happened: Judge Julie Reinhardt Ward initially agreed to permit Dateline NBC to tape the entire trial, and then to broadcast it (in all likelihood, condensed to run in an hour) at some later time. Dateline set up its cameras and subsequently agreed to act as something of a pool photographer, with their video being fed live to a television set up in a media room in the courthouse.
Apparently, the local media then announced its intention to pick up the pool feed and either broadcast it or "stream" it (broadcast it on the internet) live. It seems others intended to blog the trial, perhaps even from the courtroom. Judge Ward determined that live coverage was not in the interest of justice (the Enquirer doesn't tell us why), and pulled the plug on everything, ordering Dateline out of the courtroom and banning all electronic devices.
The situation raises interesting questions about what the right to a public trial really means. (Remember, the public trial right is not just--or even primarily--about the press's right to cover a trial, but is instead about the defendant's Sixth Amendment right to be publicly tried). I have little doubt that Judge Ward can do exactly what she's done: ban all recording devices from her courtroom. Assuming that Kentucky law doesn't provide otherwise, the federal courts have declined to recognize a right (either for a criminal defendant under the Sixth Amendment or the media under the First) to have a publicly broadcast trial. That's why federal courts remain off-limits to televised trials. Whether such blanket prohibitions are a good idea is a question I leave unanswered at this time.
I'm also fairly certain that Judge Ward could impose limits on the methods of "broadcasting" a trial. I would expect a judge to seriously consider banning live-blogging a trial from a courtroom. This isn't because "bloggers" or journalists who blog are somehow less important, but instead because of the disruptive effect people typing on their cellphones or laptops could have during trial. The jury could be distracted by this, and could also start to believe that when it sees a member of the media typing away, something important may have just happened. It's not clear, however, why the judge would ban live-blogging the video feed from the media room, where the court would not be disturbed.
I'm not sure, however, that Judge Ward can do what I think she might like to: permit Dateline NBC to record the proceedings but prohibit live broadcasts. This is far from my area of expertise, but it seems that once the court opens the proceedings to cameras, it has to permit the media to do as it wishes with the video. If that means live TV coverage or live streaming on the web, then so be it. Moreover, it's not clear what the fear is: that the jury would be tainted when it goes home at night? Jurors are supposed to avoid contact with those who would try to discuss the trial with them, and the law presumes that jurors follow their instructions. And if that's really a fear, then the jury should be sequestered: nothing the judge can do will prevent the local media from reporting on what happens (and in some cases, likely mis-reporting what happens) each day.
Of course, that's just my tentative take and I haven't taken the time to research the issue. But it's an interesting conundrum the court and the media have created, nonetheless. And one has to feel bad for the jurors, who were in court for all of ten minutes today. Hope they brought their Sudoku.
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