He's Kidding. I Think.

The end of the Legislative Session sometimes brings out Bills that no one thinks are going to pass, but get filed for reelection purposes. Such is the case, I presume, with Representative Pete Nielsen's (R-Mountain Home) Bill, H 229.

The Bill purports to limit the Governor's power to restrict firearm rights during times of rebellion. It provides that

"[d]uring the continuance of any proclaimed state of extreme emergency, insurrection or martial law, neither the governor nor any agency . . . of the state shall impose additional restrictions on the lawful possession, transfer, sale, transport, storage, display or use of firearms or ammunition." The purpose of the Bill is "[t]o make the law consistent to keep and bear arms by the inclusion of martial law." [Huh?]

Hey Pete. Couple of questions. Are you serious? Or is this just some sop to your NRA friends? Doesn't the Second Amendment and Article 1, section 11 of the Idaho Constitution ("The people have a right to keep and bear arms, which right shall not be abridged. . . . Nor shall any law permit the confiscation of firearms, except those actually used during the commission of a felony.") cover this? Do you know anyone who's gonna turn in his guns during an insurrection just because the Governor tells him to? What part of Mountain Home are you from?

Seriously. Please cut this nonsense out. There are real problems in this State and you have better things to do.

http://www.legislature.idaho.gov/legislation/2009/H0229Bookmark.htm

Further Thoughts: Speedy Trial Case

Oliver Loewy points out that Brillion does not foreclose an ineffective assistance of counsel claim for failing to bring the case to trial within the constitutional speedy trial period. In Brillion's case there might even be a deprivation of counsel claim as the dissent points out there appears to be long periods where he did not have any attorney.

Speedy Trial Delay Caused by Inaction of Assigned Counsel is Not Attributable to the State Absent a Systemic Breakdown in Public Defense System

Claims of constitutional speedy trial violations are considered under the Barker v. Wingo, 407 U.S. 514 (1972), balancing test, in which the conduct of both the defendant and prosecution are weighed. In this case, there was a delay of three years regarding which the state court concluded that "a significant portion of the delay in bringing the case to trial must be attributed to the state [as] most of the delay was caused by the inability or unwillingness of assigned counsel to move the case forward." The Vermont Supreme Court dismissed the prosecution.

The USSCt reversed. It held that assigned counsel's failure to move the case forward was not the fault of the state due, in part, to the defendant's disagreeable behavior toward appointed counsel. "[A] defendant's deliberate attempt to disrupt proceedings [should] be weighed heavily against the defendant." However, "[t]he general rule attributing to the defendant delay caused by assigned counsel is not absolute. Delay caused by a systemic 'breakdown in the public defender system' . . . could be charged to the State"

Vermont v. Brillion, http://www.supremecourtus.gov/opinions/08pdf/08-88.pdf


With this case, along with United States v. Hayes and Arizona v. Johnson, Justice Ginsburg has hit the Trifecta in bad rulings for criminal defendants this term.

16-0

The State Supreme Court is working hard, just not on criminal cases. It issued sixteen opinions this week, but there was not a single criminal law case in the pile.

Lamb's Arguments Sheared by COA

The Court of Appeals made short work of the argument that the 2006 amendment to I.C. 18-8805(5), which made a third DUI within ten years a felony, could not consider DUI convictions obtained before the amendment. Prior to 2006, the magistrate court would warn a defendant at sentencing that it took three DUIs within five years to take it to the district court.

Pointedly stating that "[a] trial court's advisement of the risk of future penalties under a recidivist statute is a warning designed to deter the defendant from committing future crimes, not a promise that puts restraints on future prosecutions," the Court of Appeals held there were neither ex post facto nor due process problems with using the defendant's 2001 and 2003 convictions to elevate his 2007 DUI charge to a felony.

State v. Lamb can be read at: http://www.isc.idaho.gov/opinions/lamb34969.pdf

One in Every Eighteen Idahoans is in the Corrections System

According to a report issued Monday by the Pew Center, one in every eighteen Idahoans is in the corrections system. We appear to take a backseat only to Georgia in correcting ourselves.

http://digg.com/world_news/1_in_31_Americans_in_jail_cost_of_locking_them_up_too_high

May Poor People be Punished More Severely?

The Court of Appeals held today that a defendant's inability to pay restitution may be considered a factor in setting the sentence, although it cannot be the sole factor in imposing imprisonment.

In State v. James Todd, http://www.isc.idaho.gov/opinions/todd35012.pdf, the Court upheld a sentence imposed in a grand theft case which was based in part on Mr. Todd's inability to repay the $57,000 in purloined funds. But, as it was "by no means the only factor considered by the district court" and other factors supported the sentence, it was a permissible consideration.

While I can see how the ability to pay restitution is a mitigating circumstance at sentencing per I.C. 19-2521(2)(f), I fail to see why it should ever be considered an aggravating factor. Isn't that just getting a larger dose of punishment because you're poor? Without getting all legally-sophisticated about it: That ain't right.

It seems to me that the inability to pay, unless voluntary on the part of the defendant, is irrelevant to the sentencing decision. Moreover, consideration of it to justify imprisonment, even in part, is bad public policy. Classism is not an ethically solid basis from which to impose sentences irrespective of whether, as the COA holds, it is not a violation of due process or equal protection.