SCOTUS to Decide Whether Sentencing Judge Can Base Prison Term on Time Needed for Treatment Program

On Friday, the Supreme Court agreed to resolve a longstanding circuit split on the question of whether a federal sentencing judge may set the length of a prison term based on what the judge believes will be necessary for a defendant to complete a prison-based treatment program.  The case is Tapia v. United States (No. 10-5400).

After being convicted of alien smuggling and bail jumping, Tapia was sentenced to 51 months in prison.  The judge made clear that the sentence was based, at least in part, on what the judge anticipated would be necessary for Tapia to complete a drug treatment program:

I am going to impose a 51-month sentence[:] 46 months [for smuggling] plus five months for the bail jump[.]  [O]ne of the factors that affects this is the need to provide treatment.  In other words, so she is in long enough to get the 500 Hour Drug Program, number one.

The dispute over the permissibility of the judge’s reasoning has its roots in the origins of the Sentencing Reform Act of 1984.  

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Convicted of Drug Distribution, Sentenced for Homicide

Just in time for exam-writing law professors comes the Seventh Circuit’s opinion in United States v. Krieger (No. 09-1333) — a case that has just that sort of counter-intuitive, “it can’t be right” flavor that makes great testing fodder.  Among other things, the case illustrates the odd place we have ended up in our jurisprudence on procedural rights at sentencing under Apprendi v. New Jersey and Harris v. United States.

Here’s what happened.  Jennifer Krieger was prescribed fentanyl, a powerful opioid, to help her with severe back pain.  She gave some of the drug to her friend Jennifer Curry for recreational use.  Curry misused the fentanyl, as well as a variety of other substances, and died the next day.  Krieger was then indicted for distributing fentanyl with death resulting.  That’s when things got really weird. 

It turns out that the government’s main witness, the medical examiner who concluded that Curry died of fentanyl toxicity, had some serious legal problems of his own and fled the country. 

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Observations by a 3L in a First-Degree Intentional Homicide Jury Pool

I was recently summoned to serve as a juror in Jefferson County, Wisconsin. As a 3L about to graduate, I have had some recent exposure in my classes and internships to the jury selection process. Being on the other side of the process, being in the pool of potential jurors, gave me some unique insights into the process that I think I may not have ever had otherwise. I took many notes during the course of my time in the pool of potential jurors, and I will share a number of these observations in my blog entries during the month of December.  For myself, perhaps the most interesting thing I observed is how the experiences jurors have on the day of jury duty, before entering the courtroom, influence their moods or attitudes once they are in the courtroom.

The case I was in the jury pool for was State v. Curtis Forbes, a first-degree intentional homicide case being tried in Columbia County with a Jefferson County jury. A few weeks earlier, a Columbia County jury heard a Jefferson County case involving two counts of first-degree intentional homicide.  This was reported in the press as an intentional “jury swap” between the two counties.

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