Part A: Questions Relating to Court Decisions in US v. Blewett (2013) and Dorsey v. United States (2012)

1. Define the Term Sentencing Disparity

Sentencing disparity refers to the inconsistency in sentencing of the convicted offenders, when those committing comparable crimes under related settings are given widely different sentences by the same judge, usually, on the basis of ethnicity, gender, race, or socioeconomic factors (Heffernan, 2014). According to Gaines and Miller (2010), justice requires that those who carry out similar crimes should get comparable sentences. Sentencing disparity takes place when this anticipation is not realized.

2. Note the Findings of the 1974 Study of Second Circuit Judges that Studied Sentencing Disparity

The 1974 study established that different judges settle on radically different sentences when confronted with the same set of facts about the crime. According to Heffernan (2014), the 1974 study made use of 48 federal trial judges in the Second Circuit Court of Appeals who were presented with similar fact patterns concerning the criminal cases. These judges were asked what sentence they would impose on the defendants mentioned in the cases. The cases used were hypothetical and fictional. However, it is reasonable to suppose that the real-life sentencing judges who considered them would have reached the same conclusion while sitting on the bench. Had they done so, the result would have been substantial sentencing disparity (Heffernan, 2014).

3. In What Way Does Indeterminate Sentencing Promote the Likelihood of Sentencing Disparity?

According to Walsh (2009), indeterminate sentencing has always been used as a prison management tool offering parole in exchange for good behavior given that it allows offenders to serve open-ended sentences. Additionally, indeterminate sentencing gave the parole authorities broad discretions that often led to disparities. Judges under indeterminate sentencing have the freedom to impose a specific sentence range on an individual offender. Consequently, the discretion judges and parole boards had to set individual sentences that led to large disparities in the sentences served by different offenders for essentially similar crimes. According to Gaines and Miller (2010), it was also impossible for offenders to know at the time of their sentencing how long they would have to stay in prison.

4. Why, According to Sutton (at 4), Does the “Saving Act” of 1871 Prevent Retroactive Application of the 2010 Legislation?

In US v. Blewett, (2013) and according to Sutton (at 4), the Fair Sentencing Act or the “saving act” of 1871 is a ruling that lessens statutory punishments for a felony and presumptively does not modify the punishments invented before the new law took effect. This Saving Act does not provide coverage to offenders sentenced before it became active; the implications of this act cannot be applied to offenders who are already sentenced. As such, the Saving Act of 1871 prevents retroactive application suggested by the 2010 legislation.

5. In What Way Does the Distinction between Intentional Discrimination and Unintentional Disparate Impact Save the Statute from Constitutional Attack Under the Fourteenth Amendment?

Unintentional disparate impact is a discrimination that, though unpremeditated, is nonetheless illegitimate, as it inexplicably impacts a protected cluster. Intentional discrimination on the other hand is a disparate treatment of one’s religion, race, age, sex, origin, disability or genetic information. In Sutton at 16 ruling of US v. Blewett, (2013), the law and not the Saving Act was regarded, in case it delivered any other constitutional provision that disallowed Blewett from getting lesser penalty. The amendment 750 only permits contemplation of guideline modifications for retroactive use and does not make retroactive any of the statutory alterations in the Saving Act. Given the specification of the Fourteenth Amendment to protect against discrimination the guidelines and the statute relied upon do not result in intentional discrimination nor unintentional disparate impact. Thus, this distinction saves the statue from constitutional attack.

6. Interpret Sutton’s Comments at 20 That Begin with “At the End of the Day….” In What Way Does Sutton Think of Law and Justice being in Tension?

Sutton at 20 ruling of US v. Blewett, (2013), comments deduce that Blewetts’ sentences is about who has the jurisdiction to lower their punishments not what should be done with that authority. This comment showed that Sutton’s court did not have the power to award Blewett a reduction in sentencing. Sutton’s interpretation of law and justice as being in tension is due to the fact that some sentencings recommended by the law may not bring about the wished-for justice and as such Congress should make new minimums ex post facto.

7. What 14th Amendment Argument (28) does Judge Moore Entertain for Invalidating the 2010 Legislation?

Judge More entertains the Fourteenth Amendment’s commands to the federal government by way of the Fifth Amendment. This argument states that equivalent security and protection should be awarded to all persons under similar circumstances and that one should not bear a greater burden than that borne by others in the same condition. This is no different in the administration of criminal justice as no different or higher sentence should be imposed upon the individual other than one approved to all for similar offenses.

8. At 41, Judge Cole says: “Our System of Tiered Scrutiny [Under the 14th Amendment Equal Protection Clause] Need Not Be Unyielding in the Face of Recognized Injustice.” Explain What He Means by This.

Judge Cole infers that the system should not operate in such a manner as to deny justice by inferring that the 100-to-1 minimums provided are discriminatory, unjustified and retroactive applications of the 18-to-1 guidelines.

Part B: Questions Relating to Court Decisions in Roper v. Simmons (2005) to Limit the Scope of Death Penalty

1. What Class of Defendants Benefits from Roper?

The class of defendants who benefit from the Roper are juvenile offenders who at the time of committing their crimes were under the age of 18. This applies to crimes demanding the imposition of the death penalty.

2. Explain the Relationship between Roper and Thompson v. Oklahoma.

The relationship between Roper and Thompson v. Oklahoma (1988) is that they both relied on the fact that death sentencing of minors was the “cruel and unusual” form of penalty. Additionally, Roper v. Simmons (2005) relied on the decisions made in Thompson v. Oklahoma (1988) that prevented the execution of offenders below the age of 16 based on the Eighth Amendment.

3. In What Way Do the Nation’s Evolving Standards of Decency—as Evidenced by the Stand States Take Concerning the Death Penalty—Offer the Court a Way to Overturn Practices Followed by the Founders in Implementing the Death Penalty?

According to Benekos and Merlo (2013), the constitutionality of the death penalty must adhere to the evolving standards of decency. Essentially, this infers that courts must be able to demonstrate that the use of death penalty furthers retribution and deterrence and is still acceptable in the eyes of the society. Additionally, the evolving standards of decency enable the courts to overturn the earlier practices as it is held that, what constitutes “cruel and unusual” punishment changes over time as the maturing of the society progresses.

4. What Retributive Argument Does Kennedy Offer for Not Imposing the Death Penalty on Juvenile Offenders?

Justice Kennedy’s retributive argument is based on research by the American Psychological Association that found that juveniles lack a sense of responsibility and maturity which is exhibited by the adults. Additionally, the under-18s were prevented from serving on juries, marrying without parental acceptance, and voting, and were also more susceptible to outside pressure and negative inspirations.

5. What Deterrence-Based Does He Offer for the Same Purpose?

Justice Kennedy’s deterrence-based is “national consensus’ standpoint that most states were increasingly infrequently applying the capital punishments for underage offenders. This is due to the fact that, at the time of the ruling, only 20 states had underage death penalties on record with only six of them having executed convicts for crimes they committed as minors since 1989.

6. In Her Dissent, O’Connor Criticizes the Categorical Rule Kennedy Adopts in Roper. What Does She Mean Categorical Rule?

The categorical rule according to Justice O’Connor refers to the abnormal precedence forbidding the execution of any offender for any crime committed before they turn 18, irrespective of how wanton, deliberate or cruel the offense is.

7. What Alternative Does O’Connor Propose to Kennedy’s Categorical Rule?

The alternative that Justice O’Connor puts forward is that many state parliaments have stretch to an ostensibly sensible conclusion that at least some 17-year-old killers are satisfactorily mature to merit death penalties in a suitable case.

Part C: Questions Relating to Court Decisions in McCleskey v. Kemp (1987) on Race and Death Penalty

1. Powell’s Opinion Requires Evidence of “Purposeful Discrimination” by One of Two Sources—by Juries (Section IIA) and by the State Legislature (Section IIB)—for M to Prevail on His Equal Protection Claim.

(a) Why wasn’t it constitutionally sufficient for M to show the racially disparate impact of the death penalty? (b) Why, according to Powell, does M fail on each point?

It was not constitutionally sufficient for McCleskey to show the racially disparate impact of the death penalty as it demanded M to show evidence of deliberate and conscious racial bias of the law officers handling the case. Racial bias and discrimination can only be shown though admission by the law officials. In this case obtaining admission from the law officials is improbable. According to Justice Powell, M fails on each point as the statistical evidence that M presented did not avail significant evidence that would necessitate a reversal of M’s conviction and that the lower court appropriately applied the Georgia law.

2. Why, According to Powell, Does M Also Offer an Unacceptable 8th Amendment (Cruel and Punishment) Argument Concerning the Georgia Death Penalty?

According to Justice Powell, M offers an unacceptable Eighth Amendment argument concerning the Georgia death penalty. Additionally, M cannot argue convincingly that the sentence accorded to him is disparate to the crime that he committed in the traditional sense. First, M does not deny that he carried out the murder in the course of a scheduled robbery, a crime punished by the constitutionally imposed death penalty. Moreover, M’s disproportionality claim that his punishment is disproportionate to the sentences in related murder cases cannot be claimed constitutionally as the death sentence he received was not disparate to other death sentencing imposed in the state.

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3. Powell Notes (308) that “Baldus Does Not Contend That His Statistics Prove That Race Enters into Any Capital Sentencing Decisions or That Race Was a Factor in McCleskey’s Particular Case.”

In contrast, Brennan and Blackmun argue in their dissents that M has no obligation under the law to demonstrate this point but only that there is a systemic bias against black defendants. Explain the difference between the two positions.

In Justice Powell’s note, the research by Baldus simply displays that there is a possibility that specific aspects like ethnic partiality may affect a bench’s resolution in a felonious case. However, these “probabilities” need to be evidenced, something that Baldus or McCleskey do not struggle to evidence. In Brenna and Blackmun, there is a total bias against black offenders as indicated in Baldus’s study. This is further substantiated by Powell’s rejection of the practicality of the study in relation to the McCleskey case.

4. At 316-17, Powell Relies on “Floodgates” Argument to Reject M’s Position.

At 367, Stevens, without mentioning the Powell floodgates position, proposes a way to resolve the case while opening the floodgates only slightly. Outline the positions taken by each justice.

Stevens’s position would be to converse the Court of Appeals view, as the supplicant McCleskey, had evidently established that his death ruling was imposed in contravention of the Fourteenth and Eighth Amendments. Brennan and Marshal held the judgment that, even if the constitution allowed capital punishment, its application in the McCleskey case was evidently biased against people of a specific race. Justice Blackmun’s view was also in line with Justice Brennan’s opinion on the evidence of racial disparity on capital cases.

Part D: Questions Relating to Court Decisions in Terry v. Ohio, (1968) on Fourth Amendment Liberty and Privacy Interests

1. The Court Viewed the Terry Facts as Instructive for Police Officers as to How They Ought to Conduct a Stop and Frisk.

Write instructions of four sentences or so for police officers that are based on the McFadden-Terry encounter telling them how to conduct a stop and frisk.

The procedure of conducting a stop and frisk involves: (1) observing the criminal suspect for any suspicious repeating behaviors like frequently spying over a shop for a considerable amount of time; (2) approaching the criminal suspect carefully, introducing yourself as a police officer and asking their names; (3) asking for their cooperation and explaining that it is not a violation of their rights but it is for their own safety and safety of the neighborhood; (4) proceed to pat them down on their outside clothing.

2. Terry Asks the Ohio Trial Court (a State Court) to Protect His Fourth Amendment (i.e., federal) Rights. Was the State Court Obligated to Entertain Terry’s Federal Claim?

The state court was obligated to entertain Terry’s federal claim as the Fourth Amendment warrants protection against arbitrary searches and seizures. However, the “stop and frisk” conducted on Terry could not categorically amount to an “unreasonable search or “seizure” as stipulated in in the Fourth Amendment.

3. Terry Loses in the United States Supreme Court.

Had he won, the Court would have held that McFadden’s search violated the Fourth Amendment and so would have excluded from trial the weapon McFadden took from Terry’s person. Had the Court done this, what would have been the fate of the Ohio criminal charge against Terry?

Had Terry won, the fate of his Ohio criminal charge could have still stood. The appeal was only on the violation of their privacy and unreasonable search and seizure but was not on the fact that they were in possession of illegally concealed weapons. Their conviction on carrying illegally concealed weapons could have still stood.

4. The Terry Court Relies on Fourth Amendment Language in Analyzing the McFadden/Terry Encounter.

(a) According to the Court, under what circumstances did McFadden seize Terry? (b) Under what circumstances did McFadden search Terry?

McFadden seized Terry under at the time he apprehended him on Cleveland Street after observing some suspicious and uncommon behavior. McFadden searched Terry when he frisked him down on his outward jacket.

5. Why, According to the Court, Was McFadden’s Search of Terry Reasonable?

McFadden’s search of Terry was reasonable as McFadden’s activity was analogous to goings-on that would in the conventional sense demand a search warrant.

6. Explain the Nature of Disagreement between Justice Douglas, the Lone Dissenter in Terry, and the Terry Majority.

Justice Douglas nature of disagreement is that this rule gives greater power to the police to carry out seizures and conduct searches than a judge or a magistrate. This act of giving the police more power than what a judicial officer has, is taking a long step down the dictatorial path. Even though, this decision is appropriate in handling present-day kinds of free-for-all, if taken it should be permitted through the people’s selection in a constitutional amendment.

Part E: Questions Relating to Court Decisions in United States v. Jones (2012) on Search and Personal Effects under the Fourth Amendment

1. Jones is Concerned with Surveillance by Means of a GPS Device.

In what way is Scalia able to translate the framework of eighteenth century tort law (which, he accurately claims, is the framework employed by the Fourth Amendment ratifiers to understand its likely application) into a workable framework for holding the installation of the GPS device to be unconstitutional?

Scalia contended that when the tracking device is installed on the car without the permission of the owner of the car, it amounts to trespass. This trespass renders the car’s owner incapable of safeguarding his personal effects against stroppy seizure and search. According to Scalia, in United States v. Jones (2012), an 1886 tort law that argued that trespass or bodily incursion into an expanse that is constitutionally secured, for the resolves of gaining facts or finding something, formed the basis for determining if a “search” had taken place. This search took place under the meaning of the Fourth Amendment.

2. What is the Fate of Harlan’s Reasonable Expectations of Privacy Test (as stated in Katz) Given Scalia’s Reliance on an Eighteenth Century Trespass Test?

The fate of Harlan’s reasonable expectation of privacy test is that it will be included if it is appropriate in situations where there exists no governmental trespass.

3. What Reason Does Sotomayor Offer for Joining Scalia’s Opinion?

(Note that if she had joined Alito’s, his opinion would have been the opinion of the Court and Scalia’s would have been a concurrence.)

Justice Sotomayor was of the opinion that the reasonable expectation of privacy check as put forth by Katz vs. United States (1967), improved, but did not weaken or dislodge the common-law of trespass that come first before it. Sotomayor went further in her opinion by disputing the short-term GPS surveillance warrantless constitutionality. Additionally, Sotomayor observes that the GPS surveillance could reveal more than intended as it is able to record every detail of a person’s private movement like trips to the doctor, to the strip clubs, and to AIDs treatment center, among other. As such, Sotomayor agrees with Justice Scalia that GPS surveillance amounts to trespass.

4. Note at Least Three Criticisms Alito Offers of Scalia’s Trespass Framework.

Alito criticized Scalia trespass framework for: (1) not taking into consideration what institutes the level of comprehensive tracking that would encroach upon the Fourth Amendment; (2) not considering the effects of longer term GPS monitoring in impinging on the expectations of privacy; and (3) not considering the basis under which the Supreme Court concluded the existence of a reasonable expectation of privacy.

5. What Weaknesses Does Alito Concede as Far as the Reasonable Expectations Test is Concerned?

Justice Alito concedes that reasonable expectations test depends on the average American’s expectations about the privacy of their movements.

Part F: Marx’s Critical Theory

1. After Reviewing Marx’s Critical theory, Offer a Marxist Critique of the Terry Stop and Frisk Rule.

The Terry stop and frisk rule validates the police practice of frisking criminal suspects for weapons and different circumstances. Mostly, law enforcement officers will carry out frisks at their choice, irrespective of the “reasonable suspicion” standard the Terry ruling put in place. Due to this freedom of choice on the part of the law enforcement officers, there is a likelihood that people of a given race, especially the African-Americans, may find themselves being inconvenienced with unnecessary frisking. As such, this rule is discriminatory and would amount to racial disparity and unlawful arrests.

2. After Reviewing Nietzsche’s Comments on Punishment, Offer a Nietzschean Analysis of the Retributive Justification for Punishment.

Nietzsche suggests that punishment in the early human societies was based on the logic of equivalence between damage and pain that emerges in the basic creditor-debtor relationship constituting the first element of a legal system and expresses the basic human instinct from cruelty (Koritansky, 2010). Based on this philosophy, punishment is aimed at rewarding an equal amount of pain or damage to the offender as suffered by the victim on the hands of the offender. Retributive punishment is meant to reward cruelty for cruelty.

3. Outline the Reform Program of Restorative Justice.

According to Bazemore and Schiff (2011), restorative justice reforms can fulfil their intention for essential change when criminal justice practices and policies are guided by the goal of correcting the harm of the crime. The reform program of restorative justice is a sentencing viewpoint and practice that gives emphasis to the offender taking the obligation to repair the harm done to the victim and the neighboring community.

4. Is the Restorative Justice Emphasis on Victim/Offender Reconciliation Compatible with the Principles Adopted in Miranda v. Arizona?

The principles adopted in Miranda v. Arizona (1966) stated that police departments should inform arrested suspects of their rights under the ruling in this case, widely held as Miranda Warning. Restorative justice is a philosophy that seeks to maximally involve the offender, victim, and the community in the process of justice (Bazemore & Schiff, 2011). The goal of sentencing in restorative justice is to provide restitution for victims, promote accountability for offenders and facilitate reintegration and reconciliation of offenders into a positive relationship with the community. In view of Miranda v. Arizona (1966), there is no compatibility with restorative justice as the victim is left out in an attempt to protect the rights of the offender.

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