Three county supervisors in California announced Thursday a campaign to recall a judge who sentenced a man to 10 years in prison -- instead of the state mandatory minimum of 25 years -- for sodomizing a 3-year-old girl who is a relative.
At the center of the controversy is Orange County Judge M. Marc Kelly who, according to transcripts of a February court proceeding, was moved by the plea for leniency by the mother of the defendant.
Perhaps I shouldn't get worked up over this. After all, the defendant's mother asked for leniency. Gosh, never saw that before.
The judge expressed "some real concerns" about the state's minimum sentence of 25 years to life in prison for a child sodomy conviction and about "whether or not the punishment is disproportionate to the defendant's individual culpability in this particular case," according to a transcript of the February proceeding.
"I have not done this before, but I have concerns regarding or not this punishment as prescribed would fall into the arena of cruel and unusual punishment and have constitutional ramifications under the Eighth Amendment," the judge said in February, according to the transcript. "I know this is a very rare situation. It doesn't come up very often."
I am compelled to admit it. People do not "very often" have forced sex with three year-olds. This judge has insight you can't get everywhere.
Now a Puritanical prude and law-driven gray suit like me might think that the thing to do was either (1) directly hold the statute unconstitutional, or (2) impose the statutorily required sentence and invite defense counsel to appeal, not that an invitation would be needed. But the judge did neither. Instead, as the CNN report continues, the judge said that
...the mandatory sentence would be appropriate in most circumstances, but "in looking at the facts of ... (the) case, the manner in which this offense was committed is not typical of a predatory, violent brutal sodomy of a child case," Kelly said.
I guess this must have been a "non-predatory" violation of a kid who can't yet ride a tricycle, but what do I know?
"Although serious and despicable, this does not compare to a situation where a pedophilic child predator preys on an innocent child," the judge said, according to the newspaper. "There was no violence or callous disregard for (the victim's) well-being."
This particular victim must have been a "guilty child," the rape "non-callous," and her well-being A-OK.
And no, this is not a delayed April Fools Day entry.
I admit that I'm doing my ridicule routine here, but I don't know how else to approach a story like this. Those supporting the return of unlimited discretion to the judicial branch, and seeking to exclude the legislature altogether from requiring even a minimal sentence will, I hope, draw some lessons from this case.
But I doubt it. More likely it will be dismissed or explained away. My experience is that once the judges-always-know-best mentality takes hold, it's impossible to dislodge. The defense bar often claims it wants "evidence-based" sentencing, but the evidence to be found in this California sentencing will simply be hustled into the corner.
That's because it's not about evidence and never was. It's about the warped perspective seeing criminals as victims and victims as ciphers. That's all it's ever been about.
Have you seen the report showing the victim's parents also asked for leniency? Do you think the expressed interest of victims merit consideration at sentencing?
Also, it is unclear from the CNN report whether this judge --- who is a former prosecutor --- in fact made a formal constitutional ruling in this case. And, finally, am I wrong to think the local DA had complete and unreviewable discretion to charge this case in a manner that would have not triggered the mandatory minimum?
I ask all the questions not to defend the ruling as much as to suggest that it would be very valuable to have more of a public record concerning how this case unfolded. Among other facts, I wonder if the prosecutor heard from the victim's parents as he made and charging and bargaining decisions In This case?
In this case and any others involving mandatory minimum sentencing terms, I wish both the prosecutor and the judge in this case had to explain and defend on appeal how they exercised their respective sentencing discretion. But based on past debates, Bill, I surmise you think only judges should be subject to this kind of transparency and review as to their sentencing decisions, right?
"Have you seen the report showing the victim's parents also asked for leniency?"
No. Could you provide a link?
"Do you think the expressed interest of victims merit consideration at sentencing?"
Yes. But it is not controlling. Criminal law concerns public harms. Tort law concerns private harms.
"Also, it is unclear from the CNN report whether this judge --- who is a former prosecutor --- in fact made a formal constitutional ruling in this case."
I think it's pretty clear. It's quite a long report, and an express finding of unconstitutionality would be big, big news.
"And, finally, am I wrong to think the local DA had complete and unreviewable discretion to charge this case in a manner that would have not triggered the mandatory minimum?"
I don't know. It's not a jurisdiction I practiced in. I do know that prosecutors act properly when the charge they bring conforms to what the defendant actually did. There is no hint in the story that the prosecutor violated that rule.
What part of the law, or what policy, requires prosecutors to undercharge cases?
"In this case and any others involving mandatory minimum sentencing terms, I wish both the prosecutor and the judge in this case had to explain and defend on appeal how they exercised their respective sentencing discretion."
In federal jurisdiction, charging is exclusively an executive branch function, off limits to judicial review. What language in the Constitution, or what case, says otherwise?
If, as a matter of policy, the political branches want to engage in THEIR OWN review of charging decisions, it's fine by me. That is, for example, why I called for a Congressional inquiry into the curious timing of the charges against Sen. Menendez, and the at least equally curious decision not to charge Lois Lerner.
I'm sorry you did not support my call.
"But based on past debates, Bill, I surmise you think only judges should be subject to this kind of transparency and review as to their sentencing decisions, right?"
Wrong. What I oppose -- because it's unconstitutional -- is JUDICIAL SUPERVISION, direct or indirect, of charging decisions. The Framers were wise indeed to keep the Jack Weinstein's of the world confined to their own sphere, in which they already wreak too much damage.
Here is the link:
http://ktla.com/2015/04/10/judge-facing-recall-over-reduced-sentence-for-child-rapist-may-have-been-influenced-by-victims-parents/
Meanwhile, this article about the case seems to indicate that the judge in this case made a constitutional ruling: http://www.ocregister.com/articles/judge-657271-sentence-kelly.html
Also, I welcome congressional scrutiny of prosecutorial discretion in the cases you mention and many others, but I am wondering if you think it improper when a prosecutor does not seek a charge that carries an MM whenever that is available. If that is your view, lots of federal prosecutors are acting improperly in tens of thousands of federal cases according to US Sentencing Commission reports.
To be clear, the only transparency and review you support for federal prosecutors is through congressional investigation. Given that federal prosecutors make hundreds of thousands of charging decisions each year, that sounds like a whole lot of wok for congress. Do you really think they are up to this task?
I think sentencing is the judge's sphere. Congress may limit that sphere by statute, but I think it generally unwise to do so in a manner that functionally puts sentencing in many cases in the hands of prosecutors because they need not explain their sentencing decisions, nor are they subject to any review beyond the too rare congressional hearing.
Finally, I note that this Judge was a prosecutor for over a decade before he was a judge. I surmise that you might now fear that he made a bunch of faulty sentencing decisions in that role, but of course we have no way of knowing because all those decisions were not on the record not subject to any review.
1. Thanks for the links.
2. I'm glad that the judge had at least the discipline to hold the statute unconstitutional (as applied, I guess). I note that there is not a single precedent cited to support this view -- there being none.
3. The ruling is not merely unprecedented. It is wrong and indeed preposterous for an offense of this nature. It will get reversed on appeal, period. I am sufficiently sure of the law on this that I will bet you $100 to $1 here and now that this is how it will turn out. Are we on?
If you are confident that your analysis of the meaning of the Cruel and Unusual Clause is more apt than mine, here's a quick way to one hundred clams.
4. "...I am wondering if you think it improper when a prosecutor does not seek a charge that carries an MM whenever that is available."
"Whenever" is too strong a word. In the great run of cases, yes, the prosecutor should charge under the statute that most aptly fits the defendant's behavior.
Do you disagree with that?
There may be cases in which a prosecutor could properly charge less. One class of such cases is well known -- where the defendant is truthfully and fully cooperating wit the cops. Another might be where the defendant has a terminal disease and will be dead in six months.
Now let me ask you: Do you think there are cases (other than where the prosecutor has bound himself in a plea deal) where he is REQUIRED to undercharge the case?
5. "To be clear, the only transparency and review you support for federal prosecutors is through congressional investigation."
One of the quite irritating things about discussing things with you is your penchant, on display right here, to attribute to me positions I never took and you know I don't have.
Why do you do that? Is that the way to have a useful debate?
I used a Congressional inquiry as AN EXAMPLE of a way to secure transparency, not as the ONLY means for doing so. You could not really have made a mistake about that.
A better way is to have committees of more senior prosecutors review initial charging decisions. This would be analogous to Substantial Assistance Review Committees, which for years have called on line AUSA's to explain and justify a proposed S.A. motion.
Note that none of the routes I support includes JUDICIAL review or oversight in any form into charging decisions. But if I'm not mistaken, some form of JUDICIAL review and oversight is what you want.
Am I getting that wrong?
6. "Finally, I note that this Judge was a prosecutor for over a decade before he was a judge. I surmise that you might now fear that he made a bunch of faulty sentencing decisions in that role, but of course we have no way of knowing because all those decisions were not on the record not subject to any review."
I have no fear that he made faulty sentencing decisions in his role as a prosecutor because PROSECTORS DO NOT SENTENCE ANYONE.
He might well have made faulty CHARGING decisions -- faulty because too lenient, as his attitude now shows. But if he did, society is just stuck with his pro-defendant mistakes, because defendants have double jeopardy protection.
P.S. There are nonetheless likely to be aging casefiles tucked away in his old office that would pretty clearly reveal the reasons for the charging decisions he made.
Bill, your final two points get the the heart of the problem and my concern with prosecutorial discretion compared to judicial discretion:
1. To see if Kelly made sound charging/sentencing decisions as a prosecutor, we would need to unearth "aging casefiles tucked away in his old office." Moreover, I am certain you or I would get much resistance if/when we were to seek those files from the current DA. But all of Kelly's sentencing decision as a judge are on the record, known and subject to considerable public scrutiny at the time they made and forever thereafter.
2. Similarly, this is the first I have heard formally about Substantial Assistance Review Committees, and I still have no idea how they work or the the procedures or substance of the decisions they made/make. I do know that 1998 and 2004 the US Sentencing Commission issued extensive reports documenting unwarranted disparities in how SA motions were made by prosecutors. I have long hoped more would be done by prosecutors to clean up their own house in this regard, but again I have no information --- and no way to get information --- about whether DOJ or individual USA offices responded in any way to problems highlighted by the USSC reports.
3. Long story short, your points highlight yet again that you think the public and our courts should simply just trust that prosecutors exercise (and internally review) their own discretionary sentencing decisions (and I trust you recognize SA motions are obviously sentencing decisions, not just charging decisions). But there is no way for the public or anyone else to even know what is going on within prosecutorial black boxes --- and so whatever consequential decisions Prosecutor Kelly made in the 1990s went unreviewed and remains unknown. Meanwhile, judges always have to make all their decisions in open, on the record and subject to appellate review --- and so we can learn about cases in which Judge Kelly's judgment can be questioned and subject to appeal (as in this cases).
4. Until I read the record, I will not bet on the appeal. But I do think the recent SCOTUS rulings in Graham and Miller suggests that this ruling could have more justification (and more hope on appeal) than if it had been rendered before 2010.
Doug --
Since you didn't answer, I'll ask again.
1. I said that in the great run of cases, the prosecutor should charge under the statute that most aptly fits the defendant's behavior. Do you disagree with that?
2. Do you think there are cases (other than where the prosecutor has bound himself in a plea deal) where he is REQUIRED to undercharge the case?
3. You stated (quoting verbatim): "To be clear, the only transparency and review you support for federal prosecutors is through congressional investigation."
That is simply false, as I pointed out, nor could you have thought that that is my position.
What I said was, "If, as a matter of policy, the political branches want to engage in THEIR OWN review of charging decisions, it's fine by me. That is, for example, why I called for a Congressional inquiry into the curious timing of the charges against Sen. Menendez..."
When I said that the political "branches" (plural) could investigate charging decisions; and that a Congressional inquiry was an "example" of how charging decisions could be explored, my words simply cannot be mangled to mean that I think "the only" transparency and review I support for federal prosecutors is through congressional investigation.
It simply can't be done.
4. Would you please quote the language in the Constitution that gives the judicial branch the power to oversee executive branch charging decisions.
5. You continue to want to hijack this thread to talk about prosecutors and procedure rather than judges and substance.
Judge Kelly grossly departed from the substance of the relevant mandatory minimum statute to give a huge break to a child rapist.
I have read no more of the record than you have. I renew my offer to bet you $100 to $1 that his sentence gets overturned. Indeed, now that you remind me of Graham and Miller, which expressly concern juvenile sentences only, I'll double it to $200 to $1.
Are we on?
P.S. I notice that you claimed no need to read the record to write approvingly of Judge Jack Weinstein in the Corey Reingold case.
Bill:
1. I have always wondered what it means for a prosecutor to charge what "most aptly fits the defendant's behavior." Can you help me understand using a too common case in federal and state courts: a defendant who has downloaded, say, 454 child porn images on a laptop. For a federal prosecutor, would a possession charge (range 0 to 20 years) or a receipt charge (range 5 to 20 years) be more apt? And should it be one charge or 20 charges (making the range 0 or 5 to 400 years) or 454 charges (making the range 0 or 5 to 9080 years)?
I have never been a prosecutor so I really do not know, either formally or informally, how one is to decide what "most aptly fits" this behavior. I do know that how the prosecutor approaches this case with his charging and bargaining discretion can, functionally, be the difference between a probation sentence and an LWOP sentence for some defendants.
2. I do not think there are any formal or significant informal charging requirements for prosecutors, which highlights my enduring concern that prosecutors have largely unfettered charging discretion. I am not complaining about this, I am just concerned about its impact because there is rarely any open discussion or public scrutiny of this profoundly-consequential charging discretion.
3. I am still struggling to understand what other transparency and review of prosecutorial discretion you support other than congressional investigation. Do you support a court or administrative agency (e.g., the sentencing commission) having authority to order prosecutors to make a public record of their justifications for charging and bargaining decisions? I am sorry I used the word "only" in this context, but I am unsure of what other forms of transparency and review you support for federal prosecutors. Please do explain what forms of prosecutorial transparency and review, other than congressional hearings, that your support. Thanks.
4. I do not think I have ever asserted that the Constitution gives the judicial branch the power to oversee charging decisions -- though I do think the grand jury clause suggests the framers believed in a robust check on these decisions.
5. I am not trying to hijack anything -- I just want the context and consequences of prosecutorial and judicial discretion to be clear. And I find notable and telling and significant that all of Prosecutor Kelly's consequential sentencing decisions remain hidden and largely unknown and unreviewable, whereas all of Judge Kelly's consequential sentencing decisions are open and fully known and reviewable.
P.S. I do not want bet until I see what/know what the judge ruled. Your swagger here is telling: you are 100% confident that the judge is wrong before you even know exactly what the judge ruled. Meanwhile, I read much of Judge Weinstein's full opinion in Reingold before writing anything about it. And I am hoping that Judge Kelly has a written opinion in the works in this case so we can all see and assess the justifications for his ruling. Of course, I also would love to see some justification in writing for the DAs charging decision in this case. Do you support such a requirement of explanation for debatable prosecutorial charging decisions?
Doug --
I think you know what you want to know, get hazy about what you want to get hazy about, and, today, have been taking liberties with language that make communication itself, which I have attempted with you as with no other commenter, essentially impossible.
The latest is that the "record" in the Reingold case now turns out mean "much of Judge Weinstein's full opinion." But no lawyer could believe those are anything close to the same thing. The great bulk of a case record -- e.g., transcripts and pleadings -- is compiled before there ever is an opinion.
With that, I think it serves no purpose for me to try to go on. Words are the only tools that exist on this blog, and I just can't count on their having any meaning.
Bummer, as I was really hoping you might answer #1 above because it goes to the heart of our on-going debates. But I had a feeling you would decide not even to try to answer my question (just like you keep refusing to explain the basis for your statement about violent crime exploding in California after Prop 47).
As always, I enjoy Bill and Doug's debate on these issues. This case hits close to home for me in that I practice in Orange County and have a daughter not much younger than the victim. I do not know enough about the crime and the perpetrator to speak intelligently as to what specific sentence the perpetrator "deserves". That being said, I don't see how the statutory minimum is unconstitutional. Sexually assaulting young children is a horrific crime and is deserving of serious punishment - whether it is 10, 25, or greater is a legislative choice.
The only reason I find this case interesting (aside from personal connection) is the comment the victim's family supported leniency. Bill stated that:
"Yes. But it is not controlling. Criminal law concerns public harms. Tort law concerns private harms."
I agree. But, doesn't this undercut victim involvement in seeking the death penalty in specific cases, opposing parole, and trying to specific enforcement the California death penalty as Kent is trying to do now (which I support on principle)? I don't know the answer, but I think if victim's have a right to express their opinion on sentencing, it should be considered equally whether it is for the maximum sentence or the minimum.
Bill's position that victims' statements merit consideration at sentencing but are not controlling is consistent with CJLF's position.
No, I don't think it undercuts our position that victims have standing in a suit to have CDCR carry out a mandatory duty to establish an execution protocol. That's a different thing.
Matt --
1. Victims absolutely have the right to express their opinions in death penalty cases and others. Payne v. Tennessee, 501 U.S. 808 (1991). This was established, you will not be surprised to hear, over the howls of the defense bar, who had earlier succeeded in gagging victims.
All I'm saying is that their voice should not CONTROL the outcome. In my opinion, however, it should have a considerable bearing. Prosecutors should welcome their input, as should judges and juries.
If Tsarnaev gets the death penalty, I believe it will be because of the victim impact testimony of the little boy's father. No normal person could read his testimony at the guilt phase without feeling like crying. It isn't going to get any better for Tsarnaev at the penalty phase.
The defense lawyers can kick up a lot of dust with their bought-and-paid-for shrinks, but they cannot stop the prosecution from calling one witness after another who no longer has arms, legs or eyes.
2. As to the child rape case here, there is no chance whatever the present illegal sentence will stand. That's why I'm willing to bet $200 to $1 on the proposition (and, I very strongly suspect, why Doug won't take the bet).
Bill-
I agree with you -- if the defense can call a bunch of witnesses arguing mitigation on whatever grounds constitute mitigation these days (seems like anything and everything to this uninformed observer), it only makes sense that the prosecution can call victims to testify about the impact of the crime.
I presume the defense can (and would eagerly do so) call victims who support leniency for whatever reason.
However, this leads to a related question, that I just thought of -- what input if any should victims have with regards to what charges should be brought and whether a plea should be offered?
By input, I mean actually make a decision on those grounds based on victim input (whatever it may be)? I know and fully support the victim's right to express their thoughts to the prosecutor on this topic, I'm curious about the practical side of the question.
Oh, I might take your 200:1 odds, solely on the chance the OC DAs forgot to file the notice of appeal.
"I might take your 200:1 odds, solely on the chance the OC DAs forgot to file the notice of appeal."
Crack me up one time!
Any odds making on appellate outcomes has to account for procedural mistakes. One time, I forgot to file a notice of appeal during the last day, and didn't realize it until I got home at about 10 pm - I couldn't log onto my computer remotely, so I raced at breakneck speed back to the office, got on my computer. Whipped up the notice and filed it on ECF at 11:59 and 20 seconds. Don't tell my malpractice carrier this story.
I'm still interested if you have any thoughts about how a prosecutor (in your opinion) should handle or consider victim input as how an individual should be charged or whether or not to offer / accept a plea.
Matt --
Sorry not to have given a fuller answer before. I was rushing out the door.
I tend to be pretty high on respect for the victim. My own view is that the prosecutor should bring the victim in from the beginning, keep him (or her or them) up to date with each important stage of the case, tell them what's happening next, and listen to anything they have to say about charging and pleas.
Sometimes the victim will want more than you think you can prove BRD, so he'll be disappointed. Sometimes he'll want a trial to be able to confront the hoodlum directly. I'm quite sympathetic to that, and I also think the extent of plea bargaining that goes on now is unhealthy for the system: It feeds the false narrative that prosecutors leverage sentences to coerce pleas from innocent people; it encourages laziness among prosecutors because it's a lot less work to take a dumbed-down plea; and, although it has been approved by the courts, it's not the means of resolution specified by the Framers.
That said, the economics of the system often make plea bargaining pretty much the only thing you can do. Explaining that to the victim might make him unhappy, but there are times when you'll need to.
As a human being with feelings, the prosecutor cannot help giving accommodation and respect to the victim. As an officer of the state, he also needs to remember that his goal is public, not private, justice.
As an example, it would not make a decisive difference to me if some of the victims in the Boston Marathon multiple murder case wanted LWOP. (Most of them want the DP, from what I know). Tsarnaev's offense to the basics of civilized life is so grave that only the DP will do public justice, so I would seek that one way or the other.