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Case Update

The 2016 Term of SCOTUS is over, and the main lesson learned seems to be that new Justice Neil Gorsuch is as conservative, if not more so, than the justice he replaced, Antonin Scalia.  Quelle surprise.  As Linda Greenhouse's column notes, he also seems inclined to lecture his colleagues on their failings; as she writes, where she previously thought Gorsuch might be a natural ally of Chief Justice Roberts, and would move him to the right, "it now seems just as likely that Neil Gorsuch's main effect on John Roberts will be to get on his nerves."  We can only hope.

As usual, the Court's term ended with a flurry of opinions.  Among them, one on Brady, one on First Amendment rights of sex offenders, and one on immigration and deportation.  We'll discuss them in the next week or so, and I'll have my annual summary of Supreme Court decisions after that.

The gang down in Columbus was busy, too, handing down State v. Anderson, in which the court addressed for the second time this year the concept of the "trial tax."

The trial tax, of course, is the imposition of additional prison time on a defendant who had the temerity to go to trial.  The court examined that earlier this year in State v. Rahab (discussed here).  While the court expressed misgivings about the trial judge's comments - before sentencing him, she reminded him that she had warned him that the "the sentence would be more" if he "didn't take responsibility," then lambasted him for going to trial with "absolutely no defense" - it determined that the trial court wasn't being vindictive because it cited other factors, such as Rahab's lengthy juvenile record, as reasons for imposing the sentence.

Anderson presented a different situation.  He and his co-defendant, Dylan Boyd, were charged in the robberies of three people and the kidnapping of a fourth.  Boyd rolled over on Anderson, pleading to three felonies and testifying against Anderson, and got a nine-year sentence.  Anderson went to trial, was convicted of all four crimes, and got nineteen years.

There are actually two questions here.  The first is whether Anderson should have received the same sentence as Boyd.  (The judge said the two were "equally culpable"; we'll presume, in the absence of any evidence to the contrary, that each had a similar criminal history.)  There's no logical or legal reason why it should.  You can think of it as Anderson being punished for going to trial, or you can think of it as Boyd being rewarded for pleading.  Boyd saved the government the trouble of trying his case, and also offered the government assistance in trying Anderson.  Plus, there's a lot of validity to the theory that one of the first steps toward rehabilitation, a goal of any system of punishment, is acceptance of responsibility for one's crimes.  Boyd went down that road, Anderson chose not to.

The second question is how much of a disparity is allowed?  Last year, the 8th District affirmed a 48-year sentence for a defendant who'd been convicted of a series of burglaries.  His co-defendant, who'd been the mastermind of the operation, had pled guilty and got nine years.

Well, those debates might be interesting in the abstract, but they're no longer any more relevant to Ohio sentencing law than the Dead Sea Scrolls.  I'd mentioned that Rahab didn't really clarify the law on trial taxes, because it was only a plurality decision.  No room for questions on Anderson; O'Neill dissents, French concurs only in judgment.  Anderson's syllabus on this issue devotes too much attention to the facts, but stripped of that unnecessary verbiage, we have five justices essentially holding that

Where the defendant is convicted after trial, when the trial court specifically states that the defendant's sentence is not being imposed as a penalty for going to trial, no inference of impropriety arises if the sentence is within the range of penalties provided by law.

And that pretty much ends the debate on the trial tax. 

The Ohio Supreme Court became one of the most juvenile-friendly courts in the country last year, culminating in State v. Aalim, which declared mandatory bindover for juveniles unconstitutional.  The court "reversed" that on reconsideration earlier this year, and Anderson drives the final nail into that coffin as well.  Much of the recent law on sentencing juveniles revolves around research on how the brain develops, with results showing that juveniles lack the maturity, judgment, and impulse control of adults, something that should have been self-evident to anyone who'd spent more than two hours with a teen-ager.  Anderson tries to ride that horse, arguing that it's unconstitutional to impose a mandatory prison sentence or a mandatory sentence for a gun specification on a juvenile.  (Anderson was 16 at the time he committed the crimes.)  That goes nowhere.

There were rumors that Anthony Kennedy was going to retire after this term, and while that's not likely, next year might be another matter.  Our Maximum Leader has evinced no interest in the judiciary, other than to hector them when they hand down decisions he doesn't like, and has, as we knew he would, farmed out judicial appointments to an amalgalm of the Federalist Society, Family Research Council, and other conservative groups.  If you want to see how the United States Supreme Court would do with two new conservative justices, just take a look at how the replacement of Lanzinger and Pfeifer by Fischer and DeWine has worked in just seven short months here in Ohio.

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