Judge Cooke finds 300+ year mandatory sentence for juvenile unconstitutional

Here's the money passage:

Here, Mathurin faces a mandatory minimum 307-year sentence. Because Congress has abolished the federal parole system, this sentence gives Mathurin no possibility of release based on demonstrated maturity and rehabilitation. A significant portion of this sentence is comprised of mandatory 25-year consecutive sentences required under § 924(c)(1)(D)(ii), which provides:

[N]o term of imprisonment imposed on a person under this subsection shall run concurrently with any other term of imprisonment imposed on the person, including any term of imprisonment imposed for the crime of violence or drug trafficking crime during which the firearm was used, carried, or possessed.

Under Graham, this provision of § 924(c)(1)(D) is unconstitutional as applied to Mathurin, a juvenile offender convicted of non-homicide offenses. To apply the statute in accordance with the Eighth Amendment, severance of the constitutionally offensive portion of § 924(c)(1)(D) is necessary.

Judge Cooke ends up finding the rest of the statute can be saved and sentences James Mathurin to 40 years in prison, meaning he will get out in his 50s, instead of spending the rest of his life in jail. Here's the entire order.

Cooke Finds Sentence Unconstitutional

Vanishing precedent

Rojas isn’t gone only from the Eleventh Circuit’s website. It’s gone from Westlaw and apparently everywhere else as well. The Federal Public Defender has been fielding requests for copies of the mysteriously vanished decision. Here it is:
Rojas

“I’m almost speechless. It’s a kinder, gentler day over there. It happens so infrequently.”

That was Judge Altonaga at a hearing on a passport fraud violation for a Navy petty officer after the government offered pretrial diversion. Both the NY Times and the Miami Herald has been covering the case. From the Herald:

While common in state court, pretrial diversions are so rare in the South Florida federal system that Altonaga said it left her “speechless,” and appeared to reflect “a kinder gentler” prosecutorial office.

They happen so infrequently, she added, that it was unclear whether the clerk’s office in the downtown Miami courthouse knew how to process one.

The idea is to give someone facing charges an opportunity to avoid prosecution through a program designed by the U.S. Probation Services, such as doing community service or perhaps taking a civics class.

Without speaking to the specifics of the Dawkins case, Todd W. Mestepey deputy chief of special prosecutions at the Miami U.S. Attorney’s Office, explained it this way Tuesday:

“Participants who successfully complete the program will not be charged or, if charged, will have the charges against them dismissed. Unsuccessful participants are returned for prosecution.”

***

Mestepey said the Department of Justice and U.S. Attorney’s office consult through their chain of command on a “pretrial diversion” package.

“Politics do not play a role in the decision,” he added.

In court, the case prosecutor, Olivia S. Choe, also raised with the judge the issue of what she called “pretrial publicity” in the case. The New York Times, Miami Herald, CNN and Wired magazine had all put a spotlight on the case of the combat vet turned captive, with the Associated Press distributing a version of The Herald’s article.

The judge seemed unconcerned. “I read one,” she replied, without specifying.

I bet it wasn't Wired...

Tuesday News and Notes

1. Mark Cuban files a pretty funny pleading with a picture from the championship.

2. The State AG's office has asked Judge Martinez to reconsider his ruling finding the Florida death penalty unconstitutional.

3. Strangely, the U.S. v. Rojas case (finding the Fair Sentencing Act applied to all defendants sentenced after August 2010) has disappeared from the 11th Circuit website.

"Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat."

Says Justice Scalia in today's 7-2 opinion in California v. Entertainment Merchants Association, striking down a California law that restricted the sale or rental of violent video games to minors.

I wonder if Justice Scalia actually played Mortal Kombat before writing that in footnote 4. At least he ruled for the First Amendment and struck down the statute. More fun from his opinion:

California’s argument would fare better if there were alongstanding tradition in this country of specially restricting children’s access to depictions of violence, but there is none. Certainly the books we give children to read—orread to them when they are younger—contain no shortageof gore. Grimm’s Fairy Tales, for example, are grim indeed. As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers “till she fell dead on the floor, a sad example of envy and jealousy.” The Complete Brothers Grimm Fairy Tales 198 (2006 ed.). Cinderella’s evil stepsisters have their eyes pecked out by doves. Id., at 95. And Hansel and Gretel (children!) kill their captor by baking her in an oven. Id., at 54.
High-school reading lists are full of similar fare. Homer’s Odysseus blinds Polyphemus the Cyclops bygrinding out his eye with a heated stake. The Odyssey ofHomer, Book IX, p. 125 (S. Butcher & A. Lang transls.1909) (“Even so did we seize the fiery-pointed brand and whirled it round in his eye, and the blood flowed about the heated bar. And the breath of the flame singed his eyelids and brows all about, as the ball of the eye burnt away, and the roots thereof crackled in the flame”). In the Inferno, Dante and Virgil watch corrupt politicians struggle to stay submerged beneath a lake of boiling pitch, lest they beskewered by devils above the surface. Canto XXI, pp.187–189 (A. Mandelbaum transl. Bantam Classic ed.1982). And Golding’s Lord of the Flies recounts how a schoolboy called Piggy is savagely murdered by other children while marooned on an island. W. Golding, Lord of the Flies 208–209 (1997 ed.).FOOTNOTE 4

FOOTNOTE 4: JUSTICE ALITO accuses us of pronouncing that playing violent video games “is not different in ‘kind’ ” from reading violent literature. Post, at 2. Well of course it is different in kind, but not in a way that causesthe provision and viewing of violent video games, unlike the provision and reading of books, not to be expressive activity and hence not toenjoy First Amendment protection. Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat.But these cultural and intellectual differences are not constitutional ones. Crudely violent video games, tawdry TV shows, and cheap novels and magazines are no less forms of speech than The Divine Comedy,and restrictions upon them must survive strict scrutiny—a question to which we devote our attention in Part III, infra. Even if we can see in them “nothing of any possible value to society . . . , they are as muchentitled to the protection of free speech as the best of literature.” Winters v. New York, 333 U. S. 507, 510 (1948).