tag:blogger.com,1999:blog-5945843206427351559.post3281925395460783488..comments2024-01-25T14:51:13.377-05:00Comments on Gamso - For the Defense: The Painesville MikadoJeff Gamsohttp://www.blogger.com/profile/09869425697771419546noreply@blogger.comBlogger4125tag:blogger.com,1999:blog-5945843206427351559.post-7777734099463700272015-06-05T10:29:03.328-04:002015-06-05T10:29:03.328-04:00Well, let me suggest something. In what you might ...Well, let me suggest something. In what you might call practical, managerial terms the legislature functions like the board of directors in a corporation, and in the sentencing context maybe it's proper that although it's a peculiarly judicial function, the legislature can set sentencing limits when it defines a crime. And I think that's how it has historically panned out, with the caveat (I'm not sure about this) that historically legislatures only defined the maximum sentence. Meaning that the typical law said "not more than". But then we got mandatory minimums ("not less than") and to me that's questionable and maybe starts us down a slippery slope where legislatures get the idea they can tinker away. And that seems to me to be beyond the proper authority of the legislature, just like it would be highly inefficient and poor management for a board of directors to get into the day to day nitty gritty of running the business. And that's before you even get to the separation of powers problem, which of course is very serious and involves the check on government power whereas in the business context we're just talking about poor management.<br /><br />But getting back to the issue of alternative sentencing, I think you were absolutely right in Gears, but that involved this spontaneous, theatrical ultra vires act by some idiot judge. You deal nicely with the more difficult question of some outrageous alternative the judge offers, but I'm not sure the Gears rationale extends to an alternative sentence that is freely chosen. I'm tempted to say that the outrageous examples are subject to a "shocks the conscience" due process standard, but then Nino Scalia and others ridicule that standard all the time, not without justification.<br /><br />I'm sure I don't have to tell you that judges have a tendency to become tyrants even when they are not inclined to tyranny to begin with. So there's that, then.<br /><br />Maybe you could entertain the thought that in the last 50 or so years we have experienced a collapse of shared "values" that in the end may constitute the only real check on tyranny, from judges or any other government actor: in 1952 the relatively mild facts of Rochin v. California were conscience shocking; by 2003 the far more troubling facts of Chavez v. Martinez, not so much. I suppose we should be grateful that Chavez at least gave the SCOTUS trouble: fractured, plurality opinion and all.<br /><br />https://scholar.google.com/scholar_case?case=13189177772806165249&hl=en&as_sdt=6&as_vis=1&oi=scholarr<br /><br />That's Rochin.<br /><br />https://scholar.google.com/scholar_case?case=9044555462545735988&q=chavez+v.+martinez&hl=en&as_sdt=6,33<br /><br />That's Chavez.<br /><br /><br /><br />Sorry to go on and on. And you might like the public prosecutor separation of powers problem as much as I do. I can see a very good argument that prosecuting attorneys have to be members of the judicial branch and no other, just like other attorneys. Not that we'll ever see that argument made in any serious way in our lifetime.John Reganhttp://strikelawyer.wordpress.comnoreply@blogger.comtag:blogger.com,1999:blog-5945843206427351559.post-39644665586801241622015-06-04T18:15:16.208-04:002015-06-04T18:15:16.208-04:00Whether the judicially offered alternative to a le...Whether the judicially offered alternative to a legal sentence is in any given case a good idea, it remains illegal. And, of course, the alternative may not be a good idea. (Sterilization for people who don't pay child support? Eating dog shit off the street for litterers? You never know what people will accept as an alternative to what the law provides. Thinking the judge will offer wise options - well, for every Solomon on the bench there's a Kim Jong Il (of Un).<br /><br />The benefit of the law is that it is the law. And, at least in theory, we can change it. The tyrant in the robes is a different matter.<br /><br />As for legislatively imposed procedures - and for whatever it's worth, - in Ohio if there's a conflict between a procedural rule and a statutory procedure, the rule wins under the authority of the Modern Courts Amendment to our state constitution which makes the courts master of their procedures. At least half the time, we'd have a better system if the conflicts (and there aren't all that many) were resolved the other way.<br /><br />I don't particularly trust any branch of government, and there's no really good way of determining who gets to sit on the bench, but if there's no good way, there are some ways worse than others. Here (as in the Buckeye State) the judiciary is elected. That's about as bad a way as you can find. The astonishing thing is that we actually have some really excellent judges. And then, some that aren't.<br /><br />Jeff Gamsohttps://www.blogger.com/profile/09869425697771419546noreply@blogger.comtag:blogger.com,1999:blog-5945843206427351559.post-62774243783266308522015-06-04T18:08:59.937-04:002015-06-04T18:08:59.937-04:00Whether the judicially offered alternative to a le...Whether the judicially offered alternative to a legal sentence is in any given case a good idea, it remains illegal. And, of course, the alternative may not be a good idea. (Sterilization for people who don't pay child support? Eating dog shit off the street for litterers? You never know what people will accept as an alternative to what the law provides. Thinking the judge will offer wise options - well, for every Solomon on the bench there's a Kim Jong Il (of Un).<br /><br />The benefit of the law is that it is the law. And, at least in theory, we can change it. The tyrant in the robes is a different matter.<br /><br />As for legislatively imposed procedures - and for whatever it's worth, - in Ohio if there's a conflict between a procedural rule and a statutory procedure, the rule wins under the authority of the Modern Courts Amendment to our state constitution which makes the courts master of their procedures. At least half the time, we'd have a better system if the conflicts (and there aren't all that many) were resolved the other way.<br /><br />I don't particularly trust any branch of government, and there's no really good way of determining who gets to sit on the bench, but if there's no good way, there are some ways worse than others. Here (as in the Buckeye State) the judiciary is elected. That's about as bad a way as you can find. The astonishing thing is that we actually have some really excellent judges. And then, some that aren't.<br /><br />Jeff Gamsohttps://www.blogger.com/profile/09869425697771419546noreply@blogger.comtag:blogger.com,1999:blog-5945843206427351559.post-68970428216234690522015-06-04T12:09:25.377-04:002015-06-04T12:09:25.377-04:00I don't think I can go along with you here, Je...I don't think I can go along with you here, Jeff. Seems to me if a judge says: here's a sentence provided by law, but I'll give you the alternative of x" and x is some exotic something or other I don't have a problem with it. I'm always suspicious of courts saying they "have no power" to do this or that, either because God knows that one's always selectively employed.<br /><br />But more fundamentally, sentencing is a peculiarly judicial function and I think we should be hesitant to let legislatures dictate to courts more than they already do on sentencing matters. Indeed I have often wondered why legislatures prescribe procedural rules for the courts - that's done in the federal system and in New York. Isn't there a separation of powers issue in there somewhere?<br /><br />And what about public prosecutors? They are simultaneously both executive and judicial officers. Isn't that a problem?<br /><br />Anyway, hadn't weighed in on any of your stuff in a while and I find this subject kind of problematic and interesting.John Reganhttp://strikelawyer.wordpress.comnoreply@blogger.com