SCOTUS Okays Piling on Mandatory Minimums — In the Name of Proportionality?

Yesterday, the Supreme Court held in Abbott v. United States that the five-year mandatory minimum prescribed by 18 U.S.C. § 924(c) must be imposed consecutively to other mandatory minimums imposed pursuant to other statutes.  The 924(c) mandatory minimum targets defendants who have used, carried, or possessed a firearm in connection with a crime of violence or a drug trafficking crime.

The defendants in Abbott illustrate how the same conduct that triggers 924(c) can also trigger other mandatory minimums.  

Continue ReadingSCOTUS Okays Piling on Mandatory Minimums — In the Name of Proportionality?

The New Miranda Warning

I never thought the Miranda warning was all that useful.  In fact, it actually raises more questions than it answers.  For example, the warning tells a suspect that anything he says can be used against him in court.  But asking for an attorney is saying something, isn’t it?  Could the prosecutor later use such a request against him?  (After all, television teaches us that only guilty people “lawyer-up.”)  And what if the suspect wants to remain silent?  Could his silence be used against him in court?  The Miranda warning fails to answer these and many other questions.

 Making matters even worse for the would-be defendant is Berghuis v. Thompkins, 130 S. Ct. 2250 (2010).  In a confidence inspiring 5-4 split, the Court ruled that a suspect cannot actually exercise the right to remain silent by remaining silent—even if that silence lasts through nearly three hours of interrogation.

 In response to all of this chaos, I’ve drafted a new and improved Miranda warning.

Continue ReadingThe New Miranda Warning

What’s the Difference Between Grimm’s Fairy Tales and Postal 2?

The question about the difference between Grimm’s Fairy Tales and Postal 2 sounds like the set-up to a corny joke.  In fact, it was a subject discussed yesterday at the U.S. Supreme Court, where the justices heard oral argument on a first Amendment challenge to a California statute banning the sale of violent video games to minors.  The New York Times reports on a spirited question and answer exchange between the justices and attorneys for each side in the dispute. 

According to the report, the law imposes a $1,000 fine for selling violent video games to anyone under the age of 18.  Violent video games are defined as those “in which the range of options available to a player includes killing, maiming, dismembering or sexually assaulting an image of a human being” in a “patently offensive way,” or a way that appeals to “deviant or morbid interests” while lacking “serious literary, artistic, political or scientific value.” 

Justice Scalia’s comments and questions made it seem like he is leaning against the law, since he pointedly questioned both the definition of a “deviant violent video game,” and queried whether, since Grimm’s Fairy Tales are indeed grim, whether they, too should be banned. 

Continue ReadingWhat’s the Difference Between Grimm’s Fairy Tales and Postal 2?