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'Incredible Is What the Law Requires'
This week U.S. District Court Judge Marilyn Patel sentenced medical marijuana activist Eddy Lepp to a 10-year mandatory minimum prison term for openly cultivating cannabis near a state highway in Northern California. Lepp maintained that he was growing the marijuana for patients who are legally permitted to use the drug under state law, but (as usual in these cases) he was not allowed to mention that at his trial, since it does not matter under federal law. Lepp's attorney called the 10-year sentence, which was dictated by statute for cultivation of more than 1,000 plants, "incredible," to which Patel replied, "Incredible is what the law requires."
|5.22.09 @ 12:45PM|#
McHopey could pardon this guy today. Unless and until he does, I don't want to hear any bullshit about how the Dems are better than the Republicans on the drug war. They are both equally bad.
JB|5.22.09 @ 12:50PM|#
'Incredible' are the people like Judge Patel who think the law
means anything in this country.
When hypocrites like Spitzer don't do prison time, then no one else
should be doing time for victimless crimes.
|5.22.09 @ 12:54PM|#
Does anyone believe that if a politician or cop got busted for a crime that had a mandatory minimum, that it would actually be applied? At the very least, the prosecutor would allow them to plea bargain to something without the minimum, or a lesser one.
|5.22.09 @ 1:01PM|#
"McHopey could pardon this guy today. Unless and until he
does, I don't want to hear any bullshit about how the Dems are
better than the Republicans on the drug war. They are both equally
bad."
Seconded.
And, FYI, Judge Patel nearly always gets it wrong.
|5.22.09 @ 1:06PM|#
Fortunately for Eddy Lepp, the POTUS has already said that
medical marijuana providers will no longer be targetted by federal
agents. Being the politically brave and morally consistent leader
that he is, Obama will undoubtably use his constitutionally
provided pardon power to overturn this injustice. Probably
tomorrow.
HaHaHaHaHaHaHaHaHaHaHaHaHaHaHaHaHaHaHaHaHaHaHaHaHaHaHaHa
The Angry Optimist|5.22.09 @ 1:08PM|#
Before everybody leaps down the Judge's throat about, I'm open
to hearing what you think she should have
done.
Violated the law?
The Chad|5.22.09 @ 1:09PM|#
Epi, you gave me a great idea! Become a politician, then start my enormous grow-opp. Then, when the fed busts me, I'll get a slap on the wrist then use my case to push for legalization!
kinnath|5.22.09 @ 1:13PM|#
Before everybody leaps down the Judge's throat about, I'm
open to hearing what you think she should have done.
Resignation would be appropriate
|5.22.09 @ 1:18PM|#
"Before everybody leaps down the Judge's throat about, I'm
open to hearing what you think she should have done."
A downward deviation from the mandatory minimum based on Mr. Lepp's
"substantial assistance" to the government regarding drug
violations. But we're talking about Patel, and she's just not a
risk taker. In fact, she's kind of a bitch.
|5.22.09 @ 1:21PM|#
Become a politician, then start my enormous
grow-opp.
Why bother? Once you enter the parasite class, you can steal the
people's money and take bribes. Why would you start an honest
business?
CaptainSmartass|5.22.09 @ 1:26PM|#
The Angry Optimist | May 22, 2009, 1:08pm | #
Before everybody leaps down the Judge's throat about, I'm open to
hearing what you think she should have done.
Violated the law?
Um, yes. Then told Congress to go fuck themselves and reread the
Constitution, especially the part about separation of powers.
That Other Alan|5.22.09 @ 1:29PM|#
Agree with Optimist. Mandatory minimums take the judge out of
equation as far as sentencing goes. Patel may have sounded
flippant, but it could also be interepreted as "I agree this law
sucks, but its out of my hands."
Did Lepp attempt a plea-bargain with the prosecutor? Once he was
convicted, what he was expecting as far as sentencing, considering
the mandatory minimum? The real villian here is the D.A for
prosecuting in the first place.
The Angry Optimist|5.22.09 @ 1:29PM|#
Riiight...sounds like a lot of armchair quarterbacking and
putting someone else's neck on the line.
And, like it or don't, Cpt. SA, there's nothing unconstitutional
about the CSA or its mandatory minimums. It's incumbent on the
legislature to change it.
|5.22.09 @ 1:33PM|#
Before everybody leaps down the Judge's throat about, I'm
open to hearing what you think she should have done.
Violated the law?
Take the prosecutor and defense attorney into chambers, then read
the prosecutor the riot act, saying that their actions in pursuing
this case is in clear violation of the publicly stated views of
POTUS on the role of federal marijuana laws versus state laws, and
arguably based on unconstitutional federal laws.
And then, if the prosecutor continues to prosecute the case, defer
decision-making on the case and release the defendant on their own
recognizance while the judge writes a blistering letter to the
justice department demanding written clarification of the AG's
position on the sovereignty of federal vs. state marijuana
laws.
Basically, the judge could have heaped all sorts of political
pressure on Obama to administratively nullify the federal
law.
This, of course, is why I'm not in any danger of being appointed as
a judge by McHopey ...
|5.22.09 @ 1:34PM|#
"Patel may have sounded flippant, but it could also be
interepreted as "I agree this law sucks, but its out of my
hands."
Except that she told the guy he just wanted to be a martyr to the
cause. No, Patel gets off on punishment, regardless of the politics
of the matter.
Jefferson Davis|5.22.09 @ 1:36PM|#
And, like it or don't, Cpt. SA, there's nothing
unconstitutional about the CSA
You are correct, Suh!
Zeb|5.22.09 @ 1:36PM|#
"there's nothing unconstitutional about the CSA or its mandatory
minimums"
Oh, right. Because growing and consuming cannabis in California is
interstate commerce.
|5.22.09 @ 1:37PM|#
The judge should have ignored the sentencing guidlines as being cruel and unusual punishment in this case. She is entirely within her rights to do so. Yes, the government would have appealed and probably won. But at least the blood woulnd't be on her hands. It is called an act of conscience.
|5.22.09 @ 1:39PM|#
Um, yes. Then told Congress to go fuck themselves and reread
the Constitution, especially the part about separation of
powers.
And told the SCOTUS as well, right?
TAO is right, this ain't the judges fault. She is legally and
morally obligated to follow established law or resign. She resigns
and the next judge gets the case and sends the guy to prison for at
least ten years.
|5.22.09 @ 1:41PM|#
TAO-
You are wrong again, today. There is nothing in the text of the
constitution that supports the proposition that the federal
government has the right to prohibit the cultivation of mj or that
the feds can prosecute cultivators of mj where a state has
specifically permitted it.
The judge would have been well within the law in dismissing the
action and sparing the guy and the tazpayers all of the ensuing
agony.
The Angry Optimist|5.22.09 @ 1:42PM|#
Oh, right. Because growing and consuming cannabis in California is interstate commerce.
Unfortunately, yes, so throwing a temper-tantrum and telling all
three branches of the Federal Government to read the Constitution
is one of the dumber things I've heard. The Constitution
was read (incorrectly, IMHO) and interpreted and
this was what we have.
The Angry Optimist|5.22.09 @ 1:43PM|#
There is nothing in the text of the constitution that supports the proposition that the federal government has the right to prohibit the cultivation of mj or that the feds can prosecute cultivators of mj where a state has specifically permitted it.
Wickard v. Filburn, interpreting the commerce clause. You
might as well be beating your head against the wall or screaming
into the wind for all the good you're doing.
|5.22.09 @ 1:44PM|#
Before everybody leaps down the Judge's throat about, I'm
open to hearing what you think she should have done.
She's helpless. I'm sure this just totally came at her out of
nowhere. If only she had known about mandatory minimum sentences
sooner.
kinnath|5.22.09 @ 1:44PM|#
TAO is right, this ain't the judges fault. She is legally
and morally obligated to follow established law or resign. She
resigns and the next judge gets the case and sends the guy to
prison for at least ten years.
First Patel resigns and is replaced. Then the replacement resigns
and is replaced. And so on.
The judiciary is the last defense against the tyranny of bad
legislation.
|5.22.09 @ 1:44PM|#
TAO-
How do you think the Lew Rockwell, antistate and striketheroot
crowd would feel about this one?
|5.22.09 @ 1:45PM|#
"She is legally and morally obligated to follow established law
or resign. She resigns and the next judge gets the case and sends
the guy to prison for at least ten years."
She doesn't have to resign. She can write a thoughtful opinion
explaining how in this case the sentencing guidelines as applied
are cruel and unusual punishment. Then she could sentence the guy
to some minimal punishment and send it to the appellate courts. Her
failure to do so says that she beleives in the guidlines or at the
very least doesn't view them as particularly unjust or immoral.
|5.22.09 @ 1:46PM|#
"TAO is right, this ain't the judges fault. She is legally
and morally obligated to follow established law or
resign."
She could have used the government assistance exception and made it
plausible (though it would have been reversed). And "morally
obligated"? She may be LEGALLY obligated by precedent and statutes
(not sure that's true), but she is MORALLY obligated to reduce the
sentence. That's why this is a tough case. Her moral obligations
conflict with her sexual attraction to punishing everybody, er, her
obligation to follow the law.
|5.22.09 @ 1:47PM|#
For all of you who say she had to resign or give the sentence, that is bullshit. She is a life time tenured judge. Nothing would have happened to her if she had ignored the guidelines. At worst she would have been overturned and scolded by a higher court. If the woman had any moral fibre she would have done the right thing and told the apellete court to get bent.
|5.22.09 @ 1:48PM|#
The fact is that Patel had options, but she believes in the sentence. Maybe you believe in the sentence too. Fair enough. But I've been a lawyer long enough to know that judges are rarely "constrained" by the prevailing view of the law, especially if that view is controversial.
|5.22.09 @ 1:48PM|#
TAO-
That case was decided in 1942. By the New Deal, stitch in time
saves nine court. Not the framers. Duh. I referred to the text
itself, not some communist malignment thereof.
|5.22.09 @ 1:49PM|#
"That's why this is a tough case. Her moral obligations conflict
with her sexual attraction to punishing everybody, er, her
obligation to follow the law."
LOL. It is not a tough case at all. It wouldn't bother me a bit to
tell DOJ and the 9th Circuit to fuck off. But that probably
explains more about why I will never be appointed a federal judge
than it does about this case.
|5.22.09 @ 1:51PM|#
She is obligated to uphold the constitution, as it was written and intended, not as mangled by the Supreme Court. Obeying precedent is not a constitutional command. It is a judicial doctrine-one that the constitution does not authorize.
The Angry Optimist|5.22.09 @ 1:51PM|#
LM, frankly, I don't give a shit about *your* reductionist view
of the Constitution.
Unless, of course, you think that we should still hang robbers
because that's not "cruel and unusual" punishment under the Eighth
Amendment.
kinnath|5.22.09 @ 1:52PM|#
For all of you who say she had to resign or give the
sentence, that is bullshit.
I didn't say she had to resign. I said it was an
appropriate response given the mandatory minimum sentencing
guidelines.
Mass resignations are one of the few judicial actions that might
actually lead to a reversal by the legislature.
chorus|5.22.09 @ 1:54PM|#
libertymike, go fuck yourself
Even if you're right, you're too big a prick to be worth paying
attention to.
The Angry Optimist|5.22.09 @ 1:54PM|#
I'm *sure* all of you castigating the judge have taken the time
to contact your representative or Senator and encourage them to
change or repeal the CSA.
Right...guys? RIGHT?
cockburn|5.22.09 @ 1:54PM|#
"The judge would have been well within the law in dismissing the
action and sparing the guy and the tazpayers all of the ensuing
agony."
And then it would have gone to the Supreme Court where they would
have ruled, probably 7-2, that Judge Patel was wrong in dismissing
the case. And then all that would have happened would have been
that the guy and taxpayers would have to endure more agony by way
of a new trial (and the expense of the appeal) and the judge would
have on her resume a case overturned by the Supreme Court.
So the judge really didn't have any viable options other than the
one she chose.
|5.22.09 @ 1:54PM|#
I would have to read re-read 8th Amendment caselaw to be sure. But I think under this set of circumstances, you could make the argument that 10 years is cruel and unusual punishment. As a judge, I gaurentee you I would find enough facts to support my decision to make the 9th Circuit jump through its ass to overturn me. I might not win, but I would write a hell of an opinion that could be cited by lawyers in other cases. This judged copped out.
|5.22.09 @ 1:57PM|#
"So the judge really didn't have any viable options other than
the one she chose."
Bullshit. See my post above at 1:54. She had lots of viable
options. Further, fuck DOJ. If they don't want to spend the time
and effort to go to the 9th Circuit every time they bring some
bullshit medical marjiuana case in front of me, then I guess they
can go find some real crimes to prosecute.
The Angry Optimist|5.22.09 @ 2:00PM|#
this borderline anarchism is interesting. the judge should have
just randomly enforced those laws with which she agrees and not
enforced those she doesn't.
So much for "the Rule of Law".
Blame Congress.
|5.22.09 @ 2:00PM|#
"and the judge would have on her resume a case overturned by the
Supreme Court."
First, I would wear having refused to sentence this guy to 10 years
overturned like a badge of honor. Second, she is a life time
tenured federal judge. she is set for life. It is not like she is
going to be out looking for work anytime soon.
|5.22.09 @ 2:02PM|#
"the judge should have just randomly enforced those laws
with which she agrees and not enforced those she
doesn't."
It wouldn't be random then, now would it?
|5.22.09 @ 2:03PM|#
TAO-
This is supposed to be a republic where the inviolability of
individual liberty trumps two wolves and a sheep deciding what is
for dinner.
The Angry Optimist|5.22.09 @ 2:03PM|#
it would subject the populace to the whims of the judge, so it would be random to the people who have to follow it.
|5.22.09 @ 2:03PM|#
"this borderline anarchism is interesting. the judge should have
just randomly enforced those laws with which she agrees and not
enforced those she doesn't.
So much for "the Rule of Law".
Blame Congress."
That is bullshit. Some laws are immoral. Some laws are so immoral
that a common law judge cannot enforcement. Further, every judge
has to enforce the laws within what he or she views as the
constraints of the Consitution. For example, a judge refusing to
enforce the fugative slave act or the Japanese internment is not
anarchy, but the proper ruling. It is a tough call because judges
should enforce 99.9% of the laws by their letter regardless of
morality. But some laws are so immoral or so at odds with the
Constitution, they should not be enforced. I would argue that the
sentencing guidelines as they apply in this case, is one of those
laws.
gmatts|5.22.09 @ 2:04PM|#
"Bullshit. See my post above at 1:54. She had lots of viable
options"
Like trying to convince the Supreme Court that a 10 year sentence
is "cruel and unusual punishment"? Good luck with that one. The SC
has a hard time deciding whether or not to execute retarded people.
I'm pretty sure they'd be ok with a 10 yr sentence for a guy
charged with intent to distribute pot. Just a hunch, though.
|5.22.09 @ 2:05PM|#
"it would subject the populace to the whims of the judge, so
it would be random to the people who have to follow it."
LOL! Still not what "random" means. Why don't you just say you
misspoke, and give us the word you should have used? I always find
it funny when people don't know how to concede the obvious.....like
Judge Patel.
|5.22.09 @ 2:06PM|#
"Like trying to convince the Supreme Court that a 10 year
sentence is "cruel and unusual punishment"? Good luck with that
one. The SC has a hard time deciding whether or not to execute
retarded people. I'm pretty sure they'd be ok with a 10 yr sentence
for a guy charged with intent to distribute pot. Just a hunch,
though."
So what if she doesn't win? She has still done the right thing.
Trying to covince the Supreme Court in 1930 that segregation was
unconstitutional was pretty hard as well. But, every judge with a
conscience should have done so. Laws and court opinions can change.
But the only way they will change is for lawyers and lower court
judges to have the courage to write why and how they should
change.
|5.22.09 @ 2:06PM|#
The rule of law necessarily means that the law is not driven by two wolves and a sheep deciding what is for lunch. Rather, the proper role of "the rule of law" is that the exercise by an individual to grow and cultivate mj trumps positivist proclamations made by Congress.
kinnath|5.22.09 @ 2:07PM|#
John, your solution does have the benefit of forcing Obama's justice department to actually appeal the judges ruling thereby forcing Obama to put up or shut up.
|5.22.09 @ 2:08PM|#
"John, your solution does have the benefit of forcing Obama's
justice department to actually appeal the judges ruling thereby
forcing Obama to put up or shut up."
I hadn't thought of that. All the better. Chances are that she is a
political creature and didn't want to make enemies by putting the
Mesiah in such a bad spot.
|5.22.09 @ 2:09PM|#
I wonder if there are any historical precedents regarding laws which, over time, came to be judged as egregious?
The Angry Optimist|5.22.09 @ 2:09PM|#
Lamar - I'm sticking by it, in terms of the rule of law. To the populace, this would be random and arbitrary.
BakedPenguin|5.22.09 @ 2:12PM|#
...the judge should have just randomly enforced those laws with which she agrees and not enforced those she doesn't.
If she went the way John suggested, she wouldn't be "randomly"
enforcing them, would she? She would enforce the Federal marijuana
law by giving the guy some nominal sentence (time served,
probation), and refused to enforce the mandatory minimum due to
(IMO valid) 8th Amendment issues.
|5.22.09 @ 2:12PM|#
"I wonder if there are any historical precedents regarding laws
which, over time, came to be judged as egregious?"
I assume you are being snarky in saying that. There is that whole
little part of American legal history involving slavery and race
relations that comes to mind.
Black Nails|5.22.09 @ 2:14PM|#
Oh goody! A libertard pissing contest. Its like watching a drunken fistfight in the redneck nieghbor's back yard.
|5.22.09 @ 2:16PM|#
I assume you are being snarky in saying that.
Yes.
Under the circumstances, the Eighteenth Amendment is also a
suitable example.
catmoz|5.22.09 @ 2:20PM|#
If the SC got the case now maybe someone like Scalia might have 2nd thougts about empowering the govt.
JB|5.22.09 @ 2:22PM|#
So much for "the Rule of Law".
What Rule of Law?
How much time did Spitzer serve for his admitted crimes?
The 'law' as it is applied now is arbitrary and capricious. That
makes it null. There is no law, only power.
If I was Eddy Lepp, I would tell the judge I will serve my first
day of prison once Spitzer serves his. Until then, if anyone comes
after me, they are fair game and so is any member of the US
government including the judge. Force should be responded to with
force. If every Eddy Lepp took out 10 government employees, this
would be a better country.
|5.22.09 @ 2:28PM|#
"Lamar - I'm sticking by it, in terms of the rule of law. To
the populace, this would be random and arbitrary."
You said, "this borderline anarchism is interesting. the judge
should have just randomly enforced those laws with which she agrees
and not enforced those she doesn't."
Clearly you are talking about the judge, and not the "perception"
of the populace. But even if you were, it still would not seem
"random".
The only people who would view such a scenario as "random" are
people who don't know what "random" means or use it
incorrectly.
I appreciate your point of view, but honestly, I have to wonder
whether I truly understand what you are saying since it is clear
that you don't even understand the words you use.
MNG|5.22.09 @ 2:42PM|#
Dudes, TAO is correct, it's the law that is the problem not the
judges application of it.
I'd like to hope the judge used the word "incredible" in its old
fashioned meaning of hard to believe...
|5.22.09 @ 2:43PM|#
I appreciate your point of view, but honestly, I have to
wonder whether I truly understand what you are saying since it is
clear that you don't even understand the words you use.
The judge was only following orders.
Alles klar?
MNG|5.22.09 @ 2:43PM|#
I read the other day about a rapist getting out after doing six
years, and this guy is getting ten years for...growing a bunch of
plants...
Incredible.
MNG|5.22.09 @ 2:46PM|#
"Until then, if anyone comes after me, they are fair game and so
is any member of the US government including the judge. Force
should be responded to with force. If every Eddy Lepp took out 10
government employees, this would be a better country."
Hello JB, welcome to Nutsville, population, you!
|5.22.09 @ 2:48PM|#
Couldn't the judge have refused to hear the case in the first place due to the prosecution seeking the mandatory minimum? I seem to remember a bunch of judges doing that years ago because they didn't like having their hands tied.
MNG|5.22.09 @ 2:49PM|#
Lamar
I have to say I think TAO is right here. Random means "Having no
specific pattern, purpose, or objective" and a judge enforcing the
laws she likes but not the ones she does not would appear to ba
acting randomly to others, you would'nt know wtf she was going to
do...
MNG|5.22.09 @ 2:51PM|#
Sage
If a judge could do that it would be troubling...
"I don't like the sentence defined by the people's representatives
in this case, so I'll just not hear it."
Again, the rule of law gets it.
The Angry Optimist|5.22.09 @ 2:53PM|#
Still wondering how many people called their legislators or at
least e-mailed them to highlight the outrageousness of the
sentencing guidelines.
I don't have a problem with people saying that she maybe should
have tried to find something under the Eight Amendment or used the
AG's last statements on the issue to find a way to help out on the
case, but I find it amazing that we have a bunch of folks for whom
it is crystal-clear what she should have done and they don't even
pick up the phone.
I'm sure I'm going to get a rash of "well,
calling/protesting/voting is meaningless! The legislature is going
to do what it wants." And that's kind of my point in this case as
well.
|5.22.09 @ 2:58PM|#
MNG-
I was trying to find some of the judges that were doing this (it
was over 15 years ago), and came across this:
http://en.wikipedia.org/wiki/Federal_Sentencing_Guidelines
Though the Federal Sentencing Guidelines were styled as
mandatory, the Supreme Court's 2005 decision in United States v.
Booker found that the Guidelines, as originally constituted,
violated the Sixth Amendment right to trial by jury, and the remedy
chosen was excision of those provisions of the law establishing the
Guidelines as mandatory. In the aftermath of Booker and other
Supreme Court cases, such as Blakely v. Washington (2004),
Guidelines are now considered advisory only, on both the federal
and the state levels. Judges must calculate the guidelines and
consider them when determining a sentence but are not required to
issue sentences within the guidelines. Those sentences are still,
however, subject to appellate review.
MNG|5.22.09 @ 3:00PM|#
I think calling and writing legislators is not meaningless but
can actually change policy when enough people do it. A big problem
is that people disagree with something and then don't let it result
in them letting their representatives know or in informing their
vote later on...
Politicians are often a cowardly lot, they go with public opinion
(and they should) when they know it...
|5.22.09 @ 3:01PM|#
"Still wondering how many people called their legislators or
at least e-mailed them to highlight the outrageousness of the
sentencing guidelines."
I don't get it. Are we not really outraged unless we send an email
that will never be read? How many times have you called your
Senator to tell them how great the law is?
I give money to "interest groups" that pursue these types of
things.
|5.22.09 @ 3:01PM|#
MNG and TAO-
Hope the two of you have a great time this weekend on your deserted
island pondering the applications of the rule of law.
MNG|5.22.09 @ 3:02PM|#
sage
Is it the guidelines that stipulate the mandatory minimums at
issue? I don't know myself...
The Angry Optimist|5.22.09 @ 3:05PM|#
Lamar, my point is that you have enough people spending energy
and "breath", if you will, coming up with myriad ways the Judge
could have done X, Y and Z, when the problem is with the
legislature, and that's where the problem needs to be fixed.
If you're involved with interest groups too, that's great. Really,
it is. But not many of us deign to even get involved at all, and
that's the frustrating thing.
If you want your POV heard, you need to express it.
FBI|5.22.09 @ 3:07PM|#
If every Eddy Lepp took out 10 government employees, this
would be a better country.
Mr. JB, stay where you are. We'll be right over.
MNG|5.22.09 @ 3:07PM|#
I could be wrong but I imagine a mandatory minimum sentence is like the legislature saying "crime x shall be punishable by a term of no less than y years in prison." It's appropriate for a legislature to set down the punishment, whether a range or not, for an offense they create. I think the sentencing guidelines had to do with what sentences should be given to someone given certain "factors" and these factors were found by judges, thus violating the role of the jury.
|5.22.09 @ 3:08PM|#
TAO: You're being too lenient. I don't think people should talk about this opinion unless they have actually run for office. Show us your campaign filings or shut up!
MNG|5.22.09 @ 3:09PM|#
I'm not all that opposed to mandatory minimums btw, though I would not set mandatory minimums as high as they are for some crimes (I guess many of those crimes I would not criminalize in the first place, so there's that).
|5.22.09 @ 3:10PM|#
TAO,
I'd do a little judicial nullification if I were the
judge. Does the federal government really even have the
constitutional authority to act at all in this area? Probably not.
What are they going to do, impeach you? And highlight the
unfairness of mandatory minimums? No way.
Taking away judges' (and juries') discretion in cases strikes me as
overreach by the legislature, in any event.
Seward|5.22.09 @ 3:14PM|#
TAO,
I'm sure I'm going to get a rash of "well,
calling/protesting/voting is meaningless! The legislature is going
to do what it wants."
The majority of the U.S. populace does not agree with the bailouts
we've been witnessing for well over a year now. The bailouts
spawned pretty significant letter-writing, e-mail, etc. campaigns
against them. The government has continued to bailout more and more
companies in more and more areas of the economy. As a general rule
I think the political class has become fairly immune to what pisses
people off, particularly at the federal level. That ought not be
suprising, BTW; that's what monopolists do.
|5.22.09 @ 3:14PM|#
While I agree the problem lies with the legislature, the courts are meant to be a check on their excesses. "STFU and do as you're told," is not something the courts should put up with.
MNG|5.22.09 @ 3:16PM|#
Guys, imagine how horrible it would be if courts generally acted as you advocate, only enforcing and applying laws they think are right. Remember, most judges probably disagree with a lot of what you think is right...
|5.22.09 @ 3:18PM|#
"Guys, imagine how horrible it would be if courts generally
acted as you advocate, only enforcing and applying laws they think
are right. Remember, most judges probably disagree with a lot of
what you think is right..."
Um, you don't go to court much, do you? This IS how it works.
MNG|5.22.09 @ 3:19PM|#
"the courts are meant to be a check on their excesses"
But only to the extent that their excesses violate the law, which
is made by the legislature. I'm all for courts slapping down
legislatures when they violate things like the Constitution, but I
don't want the courts to slap down anything based on what they
think is fair or right. The legislature and executive alone should
do that, because they are elected, and you know, that whole consent
of the governed being the only justification for government
authority thing...
The Angry Optimist|5.22.09 @ 3:20PM|#
Lamar - come on now. Are there subjectivity problems in the courts? Yes. Does that mean you can broad-brush state that judges are arbitrary and capricious in its enforcement as a rule? No. That's not a fair way to paint it.
kinnath|5.22.09 @ 3:21PM|#
Guys, imagine how horrible it would be if courts generally
acted as you advocate, only enforcing and applying laws they think
are right.
Only when the judge actually says that the minimum guidelines are
wrong, but he/she has not choice but to sentence someone per the
guidelines anyway . . . .
The judge already knows the minimum sentence isn't proper . .
|5.22.09 @ 3:21PM|#
People have a constitutional right to a trial by jury, and minimum sentences remove the jury's prerogative and give it to the prosecutor. That is a legitimate constitutional problem.
|5.22.09 @ 3:22PM|#
Everyone seems to have just ignored Sage's point above. The guidelines are not mandatory anymore. She was perfectly within her rights as a judge to ignore them. All of this talk of judicial anarachy is just nonsense.
kinnath|5.22.09 @ 3:23PM|#
Discretion is a two-edged sword:
Jury nullification keeps people from being sent to jail based on
bad law. It also allows murderers to be set free by bigots.
Judicial discretion keeps sick old men from being sent to prison
for 10 years for growing pot for other sick people.
It also means that crappy judges let rapists go with a slap on the
wrist.
Pick your poison . . .
kinnath|5.22.09 @ 3:24PM|#
Everyone seems to have just ignored Sage's point
above.
That was gnawing at the back of my brain all afternoon.
|5.22.09 @ 3:34PM|#
"Are the sentencing guidelines the same thing as mandatory
minimums?"
Yes. And as Sage points out above, they are not as mandatory as
they once were. It might have been overturned on appeal. But the
judge had every right to ignore the guidlines if she felt it was
warrented.
|5.22.09 @ 3:39PM|#
MNG,
The judiciary is a function of the consent of the governed (setting
aside my objections to that concept for a moment), judges don't
appoint themselves, they are either elected or appointed by elected
people. Judges that refuse to follow unjust laws are doing their
job. Ignoring or abrogating drug minimums is about the
Constitution, not just a judge's whim. There are two fine
rationales for the judge letting this guy go: intrastate
non-commerce is not the purview of the Feds and 10 years for
legally growing a plant is cruel and unusual.
Judges are one of the few ways to maintain freedom for the minority
in a majortarian tyranny. Judges go off the reservation
occasionally, but the legislature is much, much worse on
balance.
It might make some legal sense to say that the police are bound to
follow the law without discretion, but judicial discretion is their
function in our system, to make sure laws serve justice, not just
their creators.
JB|5.22.09 @ 3:39PM|#
Hello JB, welcome to Nutsville, population, you!
Those who fought the British and founded this country were bigger
nuts than me. That means you live in Nutsville, MNG.
Are you going to leave this country? Hell, I would chip in to help
move you to one of your socialist paradises.
JB|5.22.09 @ 3:41PM|#
Mr. JB, stay where you are. We'll be right over.
Bring it on. I committed no crime in those words.
The FBI is filled with a bunch of dickless fuckbags just like every
governement entity.
|5.22.09 @ 3:42PM|#
John,
I was going to mention that, but I figured it was still worth
arguing about.
|5.22.09 @ 3:44PM|#
"John,
I was going to mention that, but I figured it was still worth
arguing about."
I go back to my original post. If the judge had made a very
detailed finding of fact and wrote a really thoughtful opinion
about why the guidlines were not appropriate in this case, the 9th
Circuit would have played hell over turning her.
|5.22.09 @ 4:05PM|#
Great googly moogly.
The way I see it, it isn't the sentence that's the problem. It's
the conviction, and the problem with the conviction, is that the
defendant was not allowed to present relevant and mitigating
evidence at trial.
There's no way you can pretend this was "rule of law" when the
defendant is not allowed to present evidence that the state doesn't
want the jury to know.
|5.22.09 @ 4:32PM|#
# The Angry Optimist | May 22, 2009, 1:08pm | #
# Before everybody leaps down the Judge's throat
# about, I'm open to hearing what you think she
# should have done.
# Violated the law?
Is it a violation of law to let the jury hear all evidence and
testimony that the DEFENSE deems proper, whether it "matters" or
not? Is it a violation of the law to inform the jury that it is
empowered to base its verdict not only on the letter of the law,
but on the justice of it and its application?
Doing these things might not have been good for the judge's career,
but they would have been right. Better 100 judges must forevermore
wear paper hats and ask "do you want fries with that," then a
single unjustly prosecuted person have to spend a single day in
prison.
|5.22.09 @ 5:11PM|#
Look, she as much as admits that the sentence she imposes is a
terrible injustice. As noted above, these are properly regarded as
sentencing guidelines rather than mandatory minimums per
SCOTUS.
So, she imposed an injustice without even the cover of being
required to by law. She is either (a) abusing her office to indulge
her distaste for the defendant or (b) knowingly sending a man to
jail for an unconscionable term based on her desire to avoid
professional and social embarassment. I see no other
explanations.
She is scum. Tenured, federal scum.
|5.22.09 @ 6:51PM|#
I saw a video on the internet about the bible and cannabis. And I had heard and read, u know the part about the "herb bearing seed" and "it shall be as meat to you/man/us". Any way this went into much more greater detail and described other verses out of the Bible that had references to "meat" as in "cannabis". They went into great detail about YWHE as the correct name for the Creator. Any way after watching this, my personal thoughts regarding religious use has increased at least 100 fold. This was an exceptional video and had 2-3 parts. It was very detailed using only Bible text from a hebrew bible, an old bible. Really changed my mind, more towards religious justification for the use of the cannabis. Sorry I don't remember what it was titled under. But you can probably find it on youtube.
|5.22.09 @ 8:50PM|#
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Mad Max|5.22.09 @ 10:06PM|#
I understand that this case involves a mandatory minimum, not a
guideline sentence.
If 10 years was merely a guideline sentence, the judge could
disregard it if she has a good reason (as evaluated by the appeals
court).
If it's a mandatory minimum, the judge has to apply it, unless the
mandatory minimum violates the Constitution (as interpreted by
higher courts then her).
So if we assume that the mandatory minimum here is 10 years, and
assuming the higher courts would find it constitutional, then the
judge either has to (a) impose that sentence, (b) resign, or (c)
come up with some clever legal theory which would probably be
struck down by the appeals court. Even then, the defense usually
has to suggest the legal theory, since judges don't have unlimited
authority to come up with legal rulings which neither side has
requested.
The judge *could,* I suppose, say that this case calls for a
Presidential pardon, and defer sentencing for a little bit in hopes
the President grants one, and then give an angry speech when he
doesn't. She could try to mobilize public pressure to shame the
Pres into giving a pardon. But then it's back to the same choices
above.
Mad Max|5.22.09 @ 10:08PM|#
Or she could take option (d) and call the interracial chat
line.
Kidding, kidding, Your Honor!
|5.24.09 @ 2:48AM|#
James Anderson Merritt | May 22, 2009, 4:32pm | #
sage | May 22, 2009, 2:58pm | #
To you and many others, really good job. Really informative.
J. P. Carlo|5.25.09 @ 6:42PM|#
"Mass resignations are one of the few judicial actions that
might actually lead to a reversal by the legislature."
Nah, they'll just buy some black cloth at Walmart, sew it together
and put it on the Honorable Steven Hayne, Esq.
"What's the charge? Running a red light? No prob, I got it. Any
evidence? No? Ehh, we'll make due without it. How much you want? 20
years? Done. Next!"
J. P. Carlo|5.25.09 @ 6:49PM|#
"People have a constitutional right to a trial by jury, and
minimum sentences remove the jury's prerogative and give it to the
prosecutor. That is a legitimate constitutional problem."
Not exactly. Juries can choose to nullify, if they think the guy's
guilty as sin but the sentence is excessive.
That is, instead of sentencing a guy to a small sentence he
deserves, turn him loose because the mandatory minimum sentence is
too harsh.
See how that grabs the tough-on-crime pols...
Then again, rather than repeal MM sentencing laws, maybe they'll
try their damndest to conceal any evidence of MM laws or sentencing
guidelines from the jury and/or crack down on attempts at
nullification (i.e. threaten to jail jurors, which of course the
courts will smack down but not until after they've been in the
cooler for 3 months for their jury duty indiscretions).
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