Judge Sotomayor's Confirmation: As the News Scan reported earlier today, Judge Sotomayor has been approved by the Senate Judiciary Committee. Kristina Moore writes over on SCOTUSblog that during the two-hour committee session, Senators reiterated their points from the
four days of hearings and also looked to future of Supreme Court
nominations. After the six Republicans voting against Judge Sotomayor voiced concern over Sotomayor's speeches and law review articles, Senator Charles Schumer (D-NY) stated this hearing "process has shown that Republican colleagues will never support anyone nominated by President Obama, no matter how moderate her record." A similar concern was voiced by Wisconsin's two Democratic senators, Herb Kohl and Russell Feingold, when they "[a]nounced the politicization of Supreme Court nominations during the Senate Judiciary Committee's" meeting today. Amy Harder writes over on The Ninth Justice that after these hearings, Senator Kohl is concerned that the committee is no longer capable of having "substantive and candid conversations about our nominees." Feingold echoed Kohl's comments when he complained that the nominations process "fails to educate the Senate or the public about the views of potential Justices on the Supreme Court." David Ingram also reports on the senators statements at Blog of Legal Times.
D.C. Circuit Prohibits Imposing Longer Sentences to Rehabilitate: Mike Scarcella reports on Blog of Legal Times that the U.S. Court of Appeals for the D.C. Circuit ruled today that federal judges cannot "use a greater likelihood of rehabilitation to justify a longer prison sentence for a criminal defendant." A divided panel followed precedent set by the Second and Third Circuit to rule that judges cannot increase a prison sentence for rehabilitative reasons. This is in contrast to the Eighth and Ninth Circuits that allow imposition of a longer sentence to rehabilitate. The defendant, a 56-year-old drug addict with a lengthy criminal history, was sentenced to 11 years after pleading guilty to distributing 2.1 grams of heroin. The trial judge defended the sentence because of his belief that the defendant would benefit "from some of the programs and educational training and the medical treatment that is available in the federal prison system, and that would actually be more available and more useful for the defendant over a somewhat longer period of time..." In today's ruling, the majority found a statute controlled their decision. Because Congress had spoken clearly as to how long a defendant could be kept in prison, "sentencing courts may not use imprisonment as a means of rehabilitation."
Washington Criminalizes Sex With a Student Under 21: At Volokh Conspiracy, Eugene Volokh blogs that Washington passed HB 1385 and made it a felony for a school employee, who is more than 5 years older than the student, to have sex with the student. "[T]his strikes [Volokh] as quite wrong." Volokh thinks such behavior could justify firing the employee, but it does not justify sending the teacher to prison. Volokh believes that the "abuse of power" rationale does not work in this situation, since we typically require plaintiffs to prove abuse in sexual favor cases. Volokh was concerned that the "psychotherapist-patient" analogy would not work here either. However, a tip informed him that California treats such sex as a misdemeanor, or a felony if it's committed with two or more "victims." This doesn't change Volokh's opinion much. He still believes the analogy doesn't work, because the teacher-student relationship "involves far less likelihood of emotional fragility on the alleged 'victim's' part." Volokh writes: "Criminal punishment, and especially felony punishment, of sexual behavior should be reserved for genuine force, fraud, imposition on children, or situations where there seems to be a real risk of extraordinary psychological or physical harm, or harm to social institutions -- not to consensual sex between adults, even when one adult is a school employee and the other is a student."
Texas to Create Capital Defense Office: Ashby Jones writes on Wall Street Journal's Law Blog that Texas has passed legislation to create a capital defense office next year, which will handle appeals for death row inmates. An article by Lise Olsen of the Houston Chronicle reports that the office will have a budget of about $1 million and about nine employees. Olsen reports that the legislation creating the capital defense office was inspired by stories of Texas inmates who lost appeals because their lawyers missed deadlines or filed "skeletal" writs, which contained only scant information often copied from other cases.
D.C. Circuit Prohibits Imposing Longer Sentences to Rehabilitate: Mike Scarcella reports on Blog of Legal Times that the U.S. Court of Appeals for the D.C. Circuit ruled today that federal judges cannot "use a greater likelihood of rehabilitation to justify a longer prison sentence for a criminal defendant." A divided panel followed precedent set by the Second and Third Circuit to rule that judges cannot increase a prison sentence for rehabilitative reasons. This is in contrast to the Eighth and Ninth Circuits that allow imposition of a longer sentence to rehabilitate. The defendant, a 56-year-old drug addict with a lengthy criminal history, was sentenced to 11 years after pleading guilty to distributing 2.1 grams of heroin. The trial judge defended the sentence because of his belief that the defendant would benefit "from some of the programs and educational training and the medical treatment that is available in the federal prison system, and that would actually be more available and more useful for the defendant over a somewhat longer period of time..." In today's ruling, the majority found a statute controlled their decision. Because Congress had spoken clearly as to how long a defendant could be kept in prison, "sentencing courts may not use imprisonment as a means of rehabilitation."
Washington Criminalizes Sex With a Student Under 21: At Volokh Conspiracy, Eugene Volokh blogs that Washington passed HB 1385 and made it a felony for a school employee, who is more than 5 years older than the student, to have sex with the student. "[T]his strikes [Volokh] as quite wrong." Volokh thinks such behavior could justify firing the employee, but it does not justify sending the teacher to prison. Volokh believes that the "abuse of power" rationale does not work in this situation, since we typically require plaintiffs to prove abuse in sexual favor cases. Volokh was concerned that the "psychotherapist-patient" analogy would not work here either. However, a tip informed him that California treats such sex as a misdemeanor, or a felony if it's committed with two or more "victims." This doesn't change Volokh's opinion much. He still believes the analogy doesn't work, because the teacher-student relationship "involves far less likelihood of emotional fragility on the alleged 'victim's' part." Volokh writes: "Criminal punishment, and especially felony punishment, of sexual behavior should be reserved for genuine force, fraud, imposition on children, or situations where there seems to be a real risk of extraordinary psychological or physical harm, or harm to social institutions -- not to consensual sex between adults, even when one adult is a school employee and the other is a student."
Texas to Create Capital Defense Office: Ashby Jones writes on Wall Street Journal's Law Blog that Texas has passed legislation to create a capital defense office next year, which will handle appeals for death row inmates. An article by Lise Olsen of the Houston Chronicle reports that the office will have a budget of about $1 million and about nine employees. Olsen reports that the legislation creating the capital defense office was inspired by stories of Texas inmates who lost appeals because their lawyers missed deadlines or filed "skeletal" writs, which contained only scant information often copied from other cases.
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