Speaking of the Supreme Court, two recent rulings by the Justices, Gall and Pepper, made much of considering under federal sentencing law the positive post-offense behavior by a defendant. In this case, it seems the defendant was a model citizen for more than five decades, during which time he apparently served our country in the armed services and served his local community as a police officer.

To some extent military courts already factor positive post-offense service as a sentencing consideration – it can be mitigating and show rehabilitative potential under R.C.M. 1001.

Unfortunately there are only nine state jurisdictions and federal filled in – a ways to go on a useful project.

Another place to look is SentencingProject.org. (Note, it will be necessary to “sherardize.”) , or

A Practitioner’s Guide to Collateral Consequences of Conviction, or

The Office of (Federal) Defenders, for Padilla related information.

And here is an item on the National Conference of Commissioners on Uniform State Laws, model legislation for the Uniform Collateral Consequences of Conviction Act.

As always, one of the questions to ask the client is where they intend going/living upon release from active duty or confinement. Most states now have some sort of central resource through the AG’s office, typically related to pardons, expungement, or claw-backs. (And no, the military does not have expungement – a frequent question.)

The question in the title of this post is prompted by a new student note by Amanda Harris, which is titled “Surpassing Sentencing: The Controversial Next Step in Confrontation Clause Jurisprudence” and is available here via the Florida Law Review. Here is the abstract: After Crawford v. Washington opened the door to a Confrontation Clause debate in 2004, the United States Supreme Court has consistently confronted confrontation issues arising out of the Crawford interpretation. One issue that the Supreme Court has not yet tackled is whether the Confrontation Clause applies during non-capital and capital sentencing. While many states and federal courts continue to hold that no right of confrontation during sentencing exists, many other courts have chosen to apply a right of confrontation in both capital and non-capital sentencing. This Note takes two new approaches to the Confrontation Clause at sentencing debate. First, this Note addresses both the text of the Sixth Amendment and the history surrounding the Confrontation Clause to conclude that the right of confrontation should apply during sentencing, or at least during capital sentencing. Second, this Note rejects the rationale that Williams v. New York is the controlling precedent in the confrontation at sentencing debate. Under this approach, applying the Confrontation Clause at sentencing may be the next logical step in Confrontation Clause jurisprudence.

Quoting Prof. Berman TG.

AS THE NOTE POINTS OUT, THIS IS AN ISSUE UNDECIDED BY THE SUPREMES, but that there is a split among some courts.

Object. You will have to cite to McDonald and George. Unless that is done the client won’t get a (an admittedly difficult to get) shot at the Supremes.

A notable Third Circuit panel ruling today in US v. Cunningham, No. 10-4021 (3d Cir. Sept. 18, 2012) (avalable here), highlights the challenges (and the truly disgusting nature) of some federal child pornography prosecutions. Here is how the lengthy opinion gets started:

David Cunningham appeals the September 27, 2010 judgment of the United States District Court for the Western District of Pennsylvania sentencing him to 210 months’ imprisonment and 20 years’ supervised release based on his conviction for the receipt and distribution of child pornography, in violation of 18 U.S.C. § 2252(a)(2). At trial, the District Court allowed the government, over Cunningham’s objection, to show the jury two videos containing seven different video clips totaling approximately two minutes as a sample of the child pornography that gave rise to the charges. Cunningham contends that, because the Court permitted the videos to be shown without first viewing the videos to determine whether the danger of unfair prejudice substantially outweighed their probative value, the Court erred and his conviction must be reversed. We agree that the District Court abused its discretion, not only by failing to review the videos prior to admitting them but also by allowing all of those videos to be shown to the jury, because the highly inflammatory nature of two of them clearly and substantially outweighed their probative value pertaining to the crimes charged. Those errors were not harmless, and we will therefore vacate and remand for a new trial.

PBS Frontline has been giving lots of attention to criminal justice systems this fall. . . . This week Frontline will broadcast a new documentary “The Confessions,” which examines the case of the “Norfolk Four” involving a quartet of Navy men who were wrongfully convicted after being coerced into giving false confessions.

A preview is at this link.

All four sailors are now out of prison — one served his sentence, and the other three were granted conditional pardons last summer, after some 11 years in prison. But the men were not exonerated as felons or sex offenders. “I basically built myself a new cell, my bedroom, … because that’s where I’m safe,” Derek Tice, another of the “Norfolk Four,” tells FRONTLINE. “All I did was trade one cell for another.”

In the press release for the show they mention the detective who got these confessions to be Glenn Ford. SL&P has this rather interesting piece.

Earlier this summer, Detective Glenn Ford was indicted for extorting money from defendants in exchange for getting them a favorable treatment. He was tried in U.S. District Court in Norfolk and took the stand in his own defense. On Oct. 27, Ford was found guilty on two of four extortion charges and one charge of lying to the FBI. Sentencing is scheduled for Feb. 25, 2011.

Here are some media reports on the Glenn Ford prosecution: here, here, and here. One notes that,

In the Lafayette Grill case in 1990, he coerced confessions from three teenagers who later had the charges dropped against them when it was determined they could not possibly have been at the crime scene.

As the sentencing guidelines for child pornography crimes have grown increasingly harsh, a strong trend has developed among federal judges to reject the proposed prison terms as draconian. Now two influential federal appellate courts — the 2nd and 3rd Circuits — have joined the trend and declared that the child pornography guidelines are seriously flawed, or at least that a trial judge wouldn’t be wrong for thinking so.

Here is a related link from SL&P. While not precisely on point I read United States v. Nerad in the context of some push back on what’s to be punished and how severely.

You will be interested to know that this morning the U.S. Department of Justice issued proposed supplemental guidelines modifying several requirements for compliance with SORNA. Many address concerns raised by the states and other stakeholders. They do the following: Gives jurisdictions discretion to exempt juvenile offenders from public website posting Provides information concerning the review process for determining that jurisdictions have substantially implemented Gives jurisdictions discretion to modify the retroactive registration requirement to apply to new felony convictions only Provides mechanisms for newly recognized tribes to elect whether to become SORNA registration jurisdictions and to implement SORNA Expands required registration information to include the forms signed by sex offenders acknowledging that they were advised of their registration obligations Requires jurisdictions to exempt sex offenders’ e-mail addresses and other Internet identifiers from public website posting Requires jurisdictions to have sex offenders report international travel 21 days in advance Clarifies mechanism for interjurisdictional information sharing and tracking.

(update) Here is a link to the 14 May 2010 entry in the Federal Register.