19 July 2011

FYI: Advisement Posts

Before I get the venom filled emails . . .

I'm spitballing here. These arguments are embryonic, not polished and perfected. Before I made them in court or as part of a brief  I'd put considerably more work into organization, historical analysis, and other refinements.

If anyone wants to put together a serious argument against advisement - based on Virginia constitution, law and precedent - email it to me. I will be happy to publish it. The only thing I require is that it explain why the single larceny doctrine would still exist under your explanation and why common law procedures - such as having a judge presided over "sentencing hearing" which occurs everywhere in Virginia post jury sentencing (even when the presentence report is not in question) despite 19.2-298 only allowing the judge to pronounce sentence - are still valid.


Anonymous said...

Ken, I may be going out on a limb here, but lets see how your prosecutorial kahones react to this hypo:

You charge a defendant with possession of a firearm by a convicted felon. The offense carries a mandatory 5 year sentence. The jury convicts the defendant, but the judge doesn't like the mandatory sentence. So, exercising what you say is his "inherent authority" the judge takes the case under advisement for a year and then dismiss the charge. In doing so,he thumbs his nose at both the General Assembly's decision to define an offense and a punishment and your decision (as a member of the executive branch) to prosecute the offense. Doesn't this mean that the unelected judiciary is the supreme branch of government??

Anonymous said...

I'd like to see a post discussing not why you think advisement is authorized under the current legal framework, but why you think the practice of judicial advisement is a good thing to begin with.

I think we all agree that there are cases where an alternative disposition is appropriate, but why do you think it is the judiciary - which is not accountable to the electorate - that should be vested with this authority rather than the elected prosecutor?