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Friday Roundup

Consistency in sentencing.  Everybody agrees that it's a bad thing if two defendants charged with the same crimes and with similar backgrounds wind up with wildly disparate sentences.  Preventing that was the whole idea behind the enactment of the Federal Sentencing Guidelines back in 1984, where the various characteristics of the defendant and the crime he'd committed were plugged into a matrix, which would spit out a sentencing range -- say, 51 to 61 months -- and, except in rare circumstances, the judge would be limited to imposing a sentence within that range.  Consistency was also a motivating factor in the passage of sentencing reforms here in Ohio in 1996, with the matrix idea being rejected in favor of "guided discretion":  the enumeration of factors which judges should use in fashioning appropriate sentences.

Of course, that was then; now we're in the post-Booker and post-Foster world, where the Federal guidelines are now merely "advisory" and Ohio judges have virtually unfettered discretion in sentencing.  As this article (h/t to SL&P) notes, inconsistency has reared its ugly head again:  while many judges are giving lower sentences to those possessing child pornography (below-guidelines sentenced increased from 27.2% of such cases to 44% in the past two years), some aren't.  The result is that some such defendants are getting five to ten year sentences, or even probation, while others are getting 20 years.  Closer to home, as I wrote about in May, we have Juanita Myrick, whose 20-year sentence for embezzling $750,000 from the welfare department was upheld, the court dismissing a comparison to a case where a defendant got four years for embezzling $500,000 from a private Catholic girls school.

You know what?  I've come to the conclusion that consistency in sentencing is the Holy Grail of criminal justice:  everybody's trying to find something that just isn't there.  The Federal sentencing guidelines were the closest thing we had to achieving it, and until Booker rendered them advisory, the guidelines were scorned by judges, defense attorneys, and even prosecutors as providing "cookie cutter" justice, a "one-size fits all" sentencing procedure.  Judges needed discretion in sentencing.  So they have it, and now everybody complains that the sentence a particular defendant gets is largely determined by the name of the judge the random draw gives him.  (Don't believe this?  Attend an arraignment for common pleas court here in Cuyahoga County, and watch the attorney as the name is read of the judge who's assigned to the case.  Body language tells it all:  some will give a barely discernible fist pump, while others will sag like they've taken a bullet.)

You can't win.

This will piss off the French.  Speaking of not winning, Mumia Abu-Jamal was a loser in the Supreme Court last week.  Abu-Jamal, a former Black Panther, was convicted in 1981 of killing a white Philadelphia police officer.  His eloquence (he's written several books while in prison)  has made him a cause cébèbre among death penalty opponents, especially in Europe, where a Parisian street was renamed in his honor. 

One can literally spend days wandering through the various sites on the Internet, reviewing in painstaking detail the evidence which those on one side claim provide indisputable proof of Mumia's innocence, while those on the other contend just as steadfastly provide damning proof of his guilt.  I spent some time doing that a few years back, and the most balanced discussion I could find on it was an article by Stuart Taylor in a 1996 American Lawyer magazine, in which Taylor sifted through everything and concluded that (a) Mumia didn't get anything resembling a fair trial, but (b) was probably guilty of at least manslaughter, if not murder, in the death of the cop.

Back in a 2001 habeas proceeding, a Federal judge rejected all of Mumia's claims of innocence, but vacated his death sentence because of improprieties in the jury instructions.  The 3rd Circuit affirmed that in 2008, but last week the Supreme Court vacated that decision and remanded the case for reconsideration in light of Smith v. Spisak, the decision by the Court the previous week upholding the conviction and death sentence of Cleveland killer Frank Spisak (discussed here; scroll down).  Spisak had made some of the same arguments about the jury instructions as had been raised in Mumia's case, and the 6th Circuit had upheld them.  So now it goes back to the 3rd Circuit for them to take another look at the case.

Does this mean Mumia's slated for the needle?  Not likely, at least not in the imminent future.  Even the state attorney general concedes that the case will drag on for years:  in fact, the 3rd Circuit might bounce it back down to the district judge, since he didn't rule on several of Mumia's other claims because he found the jury instruction issue dispositive.  And there's always another appeal to the Supreme Court.  

Jeff Gamso, on his always-excellent blog, finds the "cult of celebrity" surrounding Mumia troublesome, accurately noting that there are plenty of people on death row who probably got a raw deal, and quite possibly worse than any Mumia got, and nobody's talking about them.  (I await news that the Champs-Elysées has been renamed the Rue de Willingham, in honor of the probably-innocent guy Texas executed back in 2004.) 

I've got a slightly different take.  If Mumia had been given life imprisonment back in 1981, we never would have heard of him, either.  The police officer's widow could have gotten on with her life, rather than spending most of the last three decades writing books about this and fending off claims that her husband was a fascist bigot who got what he deserved, albeit by someone other than Mumia.

There's an argument that the death penalty provides closure.  I don't know whether it normally does, and asking families of murder victims about it produces rather mixed results.  But if the time ever comes that Mumia Abu Jamal is executed, if anybody thinks that's going to bring closure to anyone, they're dreaming.

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