Wednesday, May 4, 2016

Extended commentary assails prosecutorial power enabled by federal mandatory minimums

Amos Irwin, who serves as Chief of Staff at the Criminal Justice Policy Foundation (CJPF), has this lengthy new Huffington Post commentary headlined "The Laws that Betrayed Their Makers: Why Mandatory Minimums Still Exist." H ere are excerpts that highlight some of its main themes:

[R]ather than serving Congress’s purpose, federal mandatory minimum drug laws actually function as a prosecutor’s tool of interrogation. Since the same prosecutors who select the charges are also trying to extract information, they threaten defendants with wildly disproportionate mandatory minimums in order to force them to cooperate. They are open about this practice. The President of the National Association of Assistant U.S. Attorneys protested in July that if Congress reduces mandatory minimums, “prosecutors would lose a tool to extract information.”

They omit the fact that mandatory minimums are primarily useful for extracting information from the low-level offenders.... There are two problems with threatening long sentences to extract cooperation from low-level drug offenders.  First, this strategy is ineffective in impacting the drug trade. Second, it inflicts immense collateral damage on innocent people and low-level offenders, while letting the guiltiest offenders off more easily — the opposite of what Congress intended...

Federal appeals courts have explicitly approved of prosecutors threatening defendants’ wives with charges that are rarely prosecuted, solely to force the defendants to cooperate. Federal appeals courts have explicitly approved of prosecutors threatening defendants’ wives with charges that are rarely prosecuted, solely to force the defendants to cooperate.  Why would federal prosecutors threaten family members, knowing that they might have to follow through on those threats? Prosecutors see that the War on Drugs is not working, and many conclude that they need to fight the enemy more aggressively....

 

May 4, 2016 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Ninth Circuit explains why disappearing does not get one out of a plea agreement or a mandatory minimum sentence

A little criminal decision handed down by the Ninth Circuit today brought to my mind the Woody Allen quote that half of life is just showing up.  Specifically, US v. Ornelas, No. 14-50533 (9th Cir. May 4, 2016) (available here), reveals that if you do not show up after signing a plea agreement, you still will get sentenced and be stuck with 100% of the terms of agreement. Here is how the opinion for gets started:

Federal law gives defendants the right to be present at their trials and sentencings unless they voluntarily waive this right. In this case, after signing a plea agreement admitting to drug distribution, but before sentencing, Israel Ornelas disappeared and lost contact with his lawyer.  The district court proceeded with sentencing in absentia and imposed a prison term of 120 months — the mandatory minimum for the charged crimes.

Ornelas was subsequently arrested and now claims the district court’s sentencing without his presence violated both the Federal Rules of Criminal Procedure and the Due Process Clause to the Constitution.  Because we find the district court did not abuse its discretion or violate Ornelas’s constitutional rights by sentencing him in absentia, we enforce the appeal waiver and DISMISS this appeal.

May 4, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (3)

"Should His PTSD Keep Him From Death Row?"

The question in the title of this post is from the second part of the headline of this Mother Jones article.  The first part of the headline explains "An Ex-Marine Killed Two People in Cold Blood," and here is how the piece starts:

At 12:44 p.m. on March 6, 2009, John Thuesen called 911. "120 Walcourt Loop," he told the dispatcher, breathing hard. "Gunshot victims." The dispatcher in College Station, Texas, asked what had happened. "I got mad at my girlfriend and I shot her," he said. "She has sucking chest wounds…"

He'd not only shot Rachel Joiner, 21, but also her older brother Travis.  Thuesen had broken into the house after midnight, not sure what he'd do but wanting to see his estranged girlfriend.  She was out with her ex-boyfriend, but when she returned later that morning, things "got out of hand."  Thuesen, a 25-year-old former Marine reservist, called 911 and almost immediately expressed remorse.  When he was arrested, he repeatedly asked the police about the victims and tried to explain why he'd kept shooting Rachel and her brother: "I felt like I was in like a mode…like training or a game or something."

The prosecution in the case gave its opening statement on May 10, 2010. With DNA evidence and no other suspects, it only took prosecutors three days to make their case.  Over the next week, the defense team touched on the facts that Thuesen suffered from depression and post-traumatic stress disorder (PTSD) from his service in Iraq, but pleaded for leniency in his sentence. None of that swayed the jury: On May 28, 2010, he was sentenced to death.

While on death row, Thuesen was given new lawyers, death penalty experts from the state's Office of Capital and Forensic Writs.  In Texas, there are often two trials, one to determine guilt or innocence and the second to determine sentencing.  Lawyers argued in their 2012 petition to have both the death penalty and the conviction vacated, and for a new sentencing trial, arguing that if his lawyers had served him adequately, "John Thuesen would not be on death row today, awaiting an execution date." In July 2015, Judge Travis Bryan III — the same judge who had presided over the criminal trial — agreed, and ruled that Thuesen's lawyers hadn't adequately explained the significance of his PTSD to jurors, and how it had factored into his actions on the day of the murders.  Bryan also ruled that Thuesen's PTSD wasn't properly treated by the Veterans Health Administration.  He recommended that Thuesen be granted a new punishment-phase trial.  The Texas Court of Criminal Appeals could rule on Bryan's recommendation at any time.

The ruling on his case has implications for a question that has concerned the military, veterans' groups, and death penalty experts: Should service-related PTSD exclude veterans from the death penalty?  An answer to this question could affect some of the estimated 300 veterans who now sit on death rows across the country, according to the Death Penalty Information Center.  But it's unclear how many of them suffer from PTSD or traumatic brain injuries, given how uneven the screening for these disorders has been.

Experts are divided about whether veterans with PTSD who commit capital crimes deserve what is known as a "categorical exemption" or "exclusion."  Juveniles receive such treatment, as do those with mental disabilities.  In 2009, Anthony Giardino, a lawyer and Iraq War veteran, argued in favor of this in the Fordham Law Review, writing that courts "should consider the more fundamental question of whether the government should be in the business of putting to death the volunteers they have trained, sent to war, and broken in the process" who likely would not be in that position "but for their military service."  In a 2015 Veterans Day USA Today op-ed, three retired military officials argued that in criminal cases, defense attorneys, prosecutors, and judges often don't consider veterans' PTSD with proper due diligence.  "Veterans with PTSD…deserve a complete investigation and presentation of their mental state by the best experts in the field," they wrote.

That idea is utterly unacceptable to Kent Scheidegger of the Criminal Justice Legal Foundation, a California-based victims-of-crime advocacy group, who contends a process already exists for veterans' defense attorneys to present mitigating evidence.  To him, a categorical exclusion would be an "extreme step" that would mean "one factor — always, in every case — necessarily outweighs the aggravating factors of the case, no matter how cold, premeditated, sadistic, or just plain evil the defendant's actions may have been."

May 4, 2016 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Tuesday, May 3, 2016

US Sentencing Commission working on impressive looking new website

I am excited and intrigued to see a new item on the US Sentencing Commission's (old) website titled "Commission Launches Redesigned Beta Website."  Here is the explanation:

We are pleased to invite you to explore an in-progress (beta) version of the Commission’s redesigned website [available here].  We have more work to do, styling content and fixing bugs but by using the site, you’ll help show us what works, and what doesn’t. E-mail comments to: PubAffairs@ussc.gov (link sends e-mail).

I spent a few minutes poking around this new USSC site, and I find it very pretty but not so easy to navigate (though this may be due to its unfamiliarity).

May 3, 2016 in Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

Prominent Floridians call for state Supreme Court to reverse all past Florida death sentences

As reported in this AP piece, now with "the fate of hundreds of Florida death row inmates in limbo, a group of former top judges and legal officials called on the state Supreme Court to impose life sentences on nearly 400 people now awaiting execution." Here is more about a notable amicus filing:

The group, which includes three former state Supreme Court justices and two former presidents of the American Bar Association, filed a legal brief Tuesday in a case that could determine the fate of Florida's death penalty.

After the U.S. Supreme Court declared Florida's death sentencing law unconstitutional in January, the state's high court halted two executions and state legislators overhauled the way convicted killers can be sentenced to death.  But the Florida Supreme Court still hasn't decided what should happen to the 389 people on death row under the previous sentencing scheme.  The court is taking the highly unusual step of this week of holding a second hearing before issuing a ruling — a sign that the seven-member court could be deeply divided.

The court said it wanted to hear from attorneys representing death row inmate Timothy Lee Hurst and the state on what affect the new sentencing law will have on his case....  In March, Gov. Rick Scott signed into law a new sentencing process for those convicted of murder.  The new law requires at least 10 out of 12 jurors recommend execution for it to be carried out.  Florida previously required that a majority of jurors recommend the death sentence. It remains one of only a handful of states that does not require a unanimous jury decision.  The new law also requires prosecutors to spell out, before a murder trial begins, the reasons why a death sentence should be imposed, and requires the jury to decide unanimously if there is at least one reason, or aggravating factor, that justifies it.

The decision to hold a second hearing in Hurst's case prompted three former state justices — Harry Lee Anstead, Gerald Kogan and former U.S. District Judge Rosemary Barkett — to join with two former heads of the bar association and an organization representing defense attorneys to argue that an existing state law requires those now on death row to have their sentences reduced to life in prison.

The state has objected and argued the U.S. Supreme Court ruling is not retroactive.

The full amicus brief referenced in this piece is available at this link, and here is its key heading:

Because the United States Supreme Court held Florida’s death penalty unconstitutional in Hurst v. Florida, section 775.082(2) of the Florida statutes requires that all persons previously sentenced to death for a capital felony be resentenced to life imprisonment without the possibility of parole.

May 3, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Eighth Circuit panel (sort of) finds severe erroneous career-offender sentence substantively unreasonable

A helpful reader alerted me to a notable Eighth Circuit panel ruling today in US v. Martinez, No 15-1004 (8th Cir. May 3, 2016) (available here). Here is how the majority opinion gets started and a few notable substantive statements:

Fernando Martinez pled guilty to possession of fifty grams or more of methamphetamine with the intent to distribute. The district court found Martinez to be a career offender based in part on the residual clause of § 4B1.2(a)(2) of the United States Sentencing Guidelines (U.S.S.G.) and sentenced him to 262 months' imprisonment.  It indicated, alternatively, it would sentence Martinez as a career offender even if he was not a career offender.  Martinez appeals, arguing he is not a career offender and his sentence is substantively unreasonable.

The government concedes Martinez is no longer a career offender under the guidelines following the United States Supreme Court's decision in Johnson v. United States, __ U.S. __, 135 S. Ct. 2551, 2557 (2015), but asserts no remand is necessary because the district court imposed a reasonable alternative sentence that renders any error harmless. Because we conclude otherwise — that the district court's alternative sentence is substantively unreasonable — we reverse and remand for resentencing....

We infer from [a sentencing] statement that the district court believed the escape conviction was a crime of violence — and Martinez was a career offender — whether the guidelines classified it as a crime of violence or not.  In other words, the district court sentenced Martinez to an additional nine years because, as a nineteen-year-old, Martinez threw an elbow at a police officer without striking the officer and ran from police for a short distance.  This severe variance is unreasonable.

The district court's other justifications do not support the degree of the upward variance either.  First, Martinez's convictions do not warrant such a severe upward variance.  Martinez's two convictions undoubtedly demonstrate serious, violent behavior, but the guideline range already accounted for these prior convictions, each of which received three criminal history points....

Second, the evidence the government presented relating to Martinez's gang ties does not justify a nine-year upward variance either.  The government presented evidence Martinez appeared in music videos along with other members of the East Side Locos prior to his incarceration.  He also appeared with other East Side Locos gang members in photographs.  While these photos and videosshow Martinez's gang ties, they do not depict Martinez actively engaging in any violent behavior.  And, more importantly, they do not depict such egregious, violent behavior that they warrant the substantial upward variance the district court imposed.

May 3, 2016 in Booker in the Circuits, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

Former New York Assembly speaker gets lengthy (way-below guideline) federal sentence for corruption

This Wall Street Journal article reports on today's notable sentencing of a notable crooked New York politician under the headline "Sheldon Silver Sentenced to 12 Years: The former New York state Assembly Speaker also was ordered to pay a $1.75 million fine." Here are the details on this sentencing (and related others to come):

Sheldon Silver was sentenced to 12 years in prison on Tuesday, making the former New York Assembly speaker one of the most powerful politicians in the state to be given time behind bars. U.S. District Judge Valerie Caproni, who also ordered Mr. Silver to pay a fine of $1.75 million and forfeit about $5.3 million he reaped from the criminal schemes of which he was convicted, said she hoped the punishment would serve as a deterrent.

“I hope the sentence I impose on you will make other politicians think twice, until their better angels take over,” said Judge Caproni. “Or, if there are no better angels, perhaps the fear of living out ones golden years in an orange jumpsuit will keep them on the straight and narrow.”

In a brief statement before the sentence was announced, Mr. Silver, 72 years old, said he had let down his family, colleagues and constituents. “I’m truly, truly sorry for that,” said Mr. Silver, who was found guilty in November of honest-services fraud, extortion, and money laundering.

Prosecutors had asked Judge Caproni for a sentence greater than any previously imposed on a New York legislator convicted of public corruption, a term that court filings suggest was 14 years. Federal sentencing guidelines suggested a range from about 22 to 27 years. Judge Caproni said Tuesday that imposing such a sentence in this case would be “draconian and unjust” given Mr. Silver’s age.

Prosecutors said Mr. Silver used his public position and power to obtain millions of dollars in kickbacks and bribes. Mr. Silver’s schemes were “multifaceted and nefarious,” Assistant U.S. Attorney Carrie Cohen said before the sentence was announced Tuesday. Ms. Cohen said Mr. Silver needed a significant prison term that reflects the public toll of his crimes and the need to deter similar conduct in Albany. “His conviction caused unparalleled damage: to our political systems, to the public’s belief in our state government,” she said.

Attorneys for Mr. Silver questioned the benefit of sending him to prison, and described their client as a committed public servant who already had suffered an extraordinary fall from grace. “He is already crushed,” attorney Joel Cohen said Tuesday. “He’s been devastated by everything that occurred over the last year and a half.”...

The conviction of Mr. Silver, a Manhattan Democrat who served as speaker for more than two decades, was a significant victory for Manhattan U.S. Attorney Preet Bharara, who has aggressively pursued public-corruption cases. “His crimes struck at the core of democratic governance — a man with unparalleled power over the affairs of New York State was secretly on the take, abusing all that power to enrich himself and prevent anyone from learning about his corrupt schemes,” prosecutors from Mr. Bharara’s office wrote in sentencing documents. “Today’s stiff sentence is a just and fitting end to Sheldon Silver’s long career of corruption,” Mr. Bharara said in a statement.

Two of Mr. Silver’s former Albany colleagues are expected to be sentenced later this month. Former state Senate Majority Leader Dean Skelos, who in December was found guilty of public-corruption charges including conspiracy, bribery and extortion, is scheduled to be sentenced on May 12. Former state Sen. John Sampson, who was found guilty in July of obstruction of justice and making false statements to investigators, is scheduled to be sentenced in Brooklyn federal court on May 19.

Prior related post:

May 3, 2016 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (3)

Some Dostoevsky-inspired insights on the death penalty delay canard

It is sometimes hard to find an academic eager to lambast death penalty abolitionists for even their weaker arguments, so I was somewhat surprised to see this new commentary by Noah Feldman titled "Delaying Execution Isn't Cruel and Unusual." Here are excerpts:

Following a view he has held since the 1990s, [Justice] Breyer argued that the death penalty is unconstitutional because it takes too long for condemned inmates to be put to death.  The claim that death delayed is worse than death itself is a particularly shocking one because it's the converse of arguing that taking a human life before its natural endpoint is fundamentally immoral.  Instead, the view asserts that death must be administered quickly after sentencing to avoid the convicted person living on many years in prison -- even if that person wants to live as long as possible.

Make no mistake: in every case where an inmate has been on death row for many years, it’s by choice. In the case considered Monday, the defendant had been on death row for 32 years.  That’s the result of numerous appeals by his lawyers, and numerous delays in hearing those appeals by state and federal courts.  A defendant who wants to die can skip the appeals, like Timothy McVeigh, the Oklahoma City bomber, who waived his appeals and was executed expeditiously.

The judges who hear capital appeals understand all this perfectly well.  They could put death penalty cases on the top of the docket.  But they don’t, at least in part because they know that every day of delay is another day of life for the defendant.  It’s one of the persistent facts about the death penalty that almost every person who is sentenced to die chooses to fight the sentence.

In theory, it's easy to say you’d rather be executed than spend your life in prison.  That sentiment is a stock line in television and film.  And I confess that I share it – or at least I think I do.  But no matter how powerful the thought, the empirical evidence suggests that, when push comes to shove, the human instinct to live another day is overwhelming. That’s why so-called “volunteers” such as McVeigh are vanishingly rare in our legal system....

So in what sense could it be cruel and unusual not to execute someone over a long period of time while his appeals are pending?  The answer has to be that the long-term prospect of death is itself a kind of torture, worse than the experience of contemplating your own execution in the immediate future.

That insight seems to follow from our imagined scene of the prisoner in his cell awaiting execution, like a character out of Dostoevsky.  The trauma and psychological pain of contemplating one’s imminent mortality seem bad enough. Imagine if that same trauma and pain were repeated for 32 years. In these terms, the delay could be seen as an unconscionable form of quasi-permanent torture.

But the reality must surely be otherwise.  A prisoner on death row doesn’t actually expect to be executed every day that he is there. Yes, courts often set execution dates.  But they do so in the full knowledge that those dates will probably be deferred.

From the perspective of the prisoner, the mere setting of the date is no doubt terribly upsetting.  But over time, even the most sensitive prisoner would surely get used to the repetitive structure of sentencing date followed by delay.  To cite Dostoevsky again, if imprecisely: “Man can get used to anything -- the brute!”

It emerges, I think, that the so-called Lackey claim to which Breyer is still devoted is psychologically unconvincing.  To live every day in the knowledge that eventually one will die is in fact the universal human condition.  Many of us will die in the next 32 years.  And none of us knows exactly on what day that will occur.

Those who oppose the death penalty on moral grounds have plenty of strong arguments on their side.  They don’t need this one, which in fact undercuts their claims about the inherent value of every day of human life.  The remedy for death delayed, after all, can only be death itself.

Prior recent related post:

May 3, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (3)

"Do Public Defenders Spend Less Time on Black Clients?"

The question in the title of this post is the headline of this interesting new Marshall Project piece.  Here are excerpts (with a couple of key links highlighted):

[There is a] rising awareness among public defenders that they may harbor the same hidden biases about race and ethnicity that are frequently attributed to police and prosecutors.

A growing body of research has attempted to draw links between “implicit bias” — beliefs that unconsciously drive decisions and behavior — and the racial disparities that cut across every stage of the criminal justice system, from arrest to charge to incarceration to release.  One study found that black defendants in Connecticut had bail amounts 25 percent higher than comparable white defendants, and another found black defendants drew sentences 12 percent longer in federal courts.

Much of that research is focused on prosecutors, jurors, and judges, the triad that puts people away. But scholars are beginning to discuss how it also affects the work of public defenders, to the surprise of many. “I figured: we understand racism, we know our clients, we get it,” says Jeff Adachi, the elected public defender of San Francisco. But now Adachi is one of the converted, running twice-yearly all-day sessions for his staff in which they discuss how unconscious prejudices can sneak into their work. “It’s like waking up from a dream,” Jacobs recalled. Discovering research that correlated skin tone with the harshness of sentences “just made me sick.”  He remembered times in the past when he defended immigrants. “I’d think, well this case isn’t as important as that of an American kid. It was a feeling of, they’re just going to plead guilty so why should I bother?”

“[Bias] might manifest in whether the defender believes in the guilt or innocence of the person they’re representing,” says Phoebe Haddon, the chancellor of Rutgers University-Camden. “Or their assessment of their fellow counsel, the credibility of witnesses, whether to take a plea bargain.”

Haddon and the American Bar Association are developing videos to push judges, prosecutors, and defenders to discuss bias, and the first features a string of judges in a rare show of penitence.  William Missouri, a black retired circuit court judge from Maryland, says he studied his own sentencing patterns and found “I was biased against my own people.”  He looks stricken.  “Being accused of bias is like a knife slicing your skin; the cut may be shallow, but the hurt is deep.”

It goes beyond race: Cheryl Cesario, a former Chicago judge, admits that being Catholic meant that when a Catholic defendant came before her, “I would expect more from them.”

Data is scant, since multiple factors create sentencing disparities, but many defenders believe one of the main consequences of “implicit bias” is how much time they spend on cases. Their offices tend to be poorly funded and inundated with far more cases than they have time to handle. “They may expend more effort on cases in which they believe their client is factually innocent,” professors Song Richardson and Philip Atiba Goff wrote in a 2013 article for the Yale Law Journal [available here].

If they are interpreting “ambiguous evidence,” a “judgment of guilt may be cognitively easier to make because of the strong implicit association between blacks and crime.”  The surrender to implicit bias is exacerbated by stress, exhaustion, and speed — “exactly the context in which public defenders find themselves.”

The research is still mostly theoretical, and the concrete suggestions tend to be vague. The video for judges suggests that they try to be more humble, slow down their work, and do more self-examination. Videos and other materials for public defenders and prosecutors will be released by the American Bar Association later this year. The association encourages all lawyers to take the Implicit Association Test, an online tool developed at Harvard University [available here]. 

I have long considered implicit bias to be a huge issue in he operation of the criminal justice system, but I also think there are lots and lots of (not-quite-so-controversial) biases that impact the work of defense attorneys (both public and private). In particular, based on my own experiences and watching a lot of defense attorneys at work, I often see and surmise that the involvement of passionate family members and/or firends can have a potentially huge impact on how much time a defense attorney will spend on efforts to secure a better plea deal and/or develop more mitigation arguments at sentencing. For most overworked lawyers, squeaky-wheel clients will often get more grease; but criminal defense attorneys can grow a bit numb to their clients' squeaks. But I suspect when the squeaks are coming from a defendant's family and friends, especially if those "squeaks" are respectful and help identify sound mitigating matters, it can really impact defense efforts.

May 3, 2016 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2)

An (unhelpful?) exploration of how a troubled young man gets 50 years in Mississippi prison for first felony convictions

Rorschach-test_00411577The Clarion-Ledger is starting a series of articles titled "Blinded Justice" that will "examine how justice and punishment are dispensed across Mississippi in wildly varying ways."   This first piece, headlined "50 years for first-time felon? Tyler Moore's story," tells an interesting tale of a troubled youngster seemingly getting slammed on felony burglary charges because local prosecutors seemingly got tired of his many (misdemeanor-level?) crimes.  But the article does not really explore just why prosecutors ultimately were so eager to throw the book at this particular offender.  Here are excerpts from the lengthy piece which, for me, raises more state sentencing questions than answers:

Tyler Moore is serving 50 years in prison.  It was the first felony conviction for the 24-year-old man, struggling to beat a drug addiction and his bipolar disorder.  According to the Mississippi Department of Corrections, his tentative release date is 2061.  “I’ll be dead and gone by then,” said his mother, Lisa.  So how does a first-time offender who pleaded guilty to burglary get 50 years in prison? This is his story....

[In] 2010 ..., [after a charge of] misdemeanor possession of marijuana paraphernalia, Brandon police knocked on the door one morning about 5 and took him to jail on a hit-and-run charge.  The charge against him arose from a party where a young man claimed Moore had run his car into him.  Moore denied the claim, saying the young man jumped on his hood.

On April 1, 2011, the judge reduced the charge to leaving the scene of an accident, and Moore was fined.  While walking out of the courtroom that day, he muttered to someone, “You lying sack of s---.” The judge sentenced him to 10 days in jail.

The misdemeanors kept coming — contributing to the delinquency of a minor and then shoplifting when he walked out of Belk’s with a pair of sunglasses.  Moore apologized to the judge and admitted he had a drug problem.  He spent two days in jail, and the judge ordered drug tests for the next six months.

In August 2011, Moore’s family opted for a change in scenery, moving to Branson, Missouri....  He passed all the court-ordered drug tests. What his family didn’t know was his drug addiction now included spice, which couldn’t be detected by the tests....

As months passed, Moore grew homesick, and an old girlfriend wanted to see him.  He made it back to Mississippi before Christmas.  “I return and have like no money, so what do I do?” he wrote in a sworn statement. “I decide to steal out of some cars to get some money.”  In a Reservoir neighborhood, he went from car to car, stealing University of Alabama floor mats, an iPod, a University of Florida gator decal and other items.  

On Feb. 2, 2012, the Rankin County Sheriff’s Department arrested him and charged him with breaking into six cars....  After two weeks in jail, the judge released him on bond with the understanding he would go to a drug rehabilitation center, where he stayed 30 days.  He admitted using crack cocaine, marijuana and alcohol.

A day after his release in April 2012, deputies responded to a call, where they questioned Moore about a mother saying he had sex with her 15-year-old girl.  They arrested him, and he sat in jail for two weeks on a statutory rape charge. He insisted on his innocence, but he failed his polygraph test.  Once again, the judge sent him for 30 days to drug rehab.

After his release, his mother witnessed an improvement. He got a job at a car dealership... [but] when his employer learned of his burglary arrest, he was fired.  Devastated, he sank into depression.  A psychiatrist diagnosed him with bipolar disorder and prescribed medication. His mother said her son continued to struggle and began hanging out with the wrong crowd....

On a Thursday morning, Jan. 10, 2013, Moore discovered he had 21 missed calls on his cell phone.  When he talked with his mother, she told him deputies were looking for him. “They say you’ve been breaking into houses.”...  That evening, deputies showed up a second time, jailing his mother, father and 14-year-old brother on accessory after the fact charges after learning he was in Louisiana.

Moore’s grandmother decided to turn him in to the Rankin County jail on Sunday, a day before his court appearance.  When they arrived in Brandon, he bolted.  Deputies pursued him and caught him in a Reservoir subdivision, charging him with five counts of house burglary.  With his family behind bars, he confessed to the burglaries.

In a March 4, 2013, memo, the district attorney’s office gave Moore two options: He could plead guilty to auto and home burglaries and receive 50 years, or he could plead guilty to the burglaries and statutory rape, and receive 30 years.  Moore refused to plead guilty to statutory rape.

Ten days later, his new defense lawyer, John Colette of Jackson, proposed to prosecutors an alternative of 25 years in prison, with 25 suspended....  In response to the 50-year offer from prosecutors, Colette told them in a July 26, 2013, email, “Nobody was killed.”

The district attorney’s office didn’t budge.  Moore faced a new charge, this time of escape, after his bunkmate tried to pry open a window in the Rankin County jail.  Colette spoke with the sheriff and prosecutors, who agreed to dismiss the charge.

On Aug. 5, 2013, Moore pleaded guilty to five counts of auto burglary and one count of house burglary. “I just wanted to tell everyone I hurt I’m sorry, and my family,” he told the judge. “I’m not a bad guy. I’ve made some mistakes and I’m on drugs and I ran with the wrong crowd.”...  He confessed, “I don’t understand anything anymore, and I need help.”....

In keeping with the plea bargain, the judge sentenced him to 60 years in prison, suspending 10 of those years, with each sentence running consecutively. Circuit Judge John Emfinger dismissed the other burglary charges and the statutory rape charge. Because authorities recovered nearly all of the items, the judge ordered less than $300 in restitution.

Moore thought his sentences would run concurrently. “It did not seem real,” he wrote, “and to this day, it does not seem real.”... When Moore arrived at the Central Mississippi Correctional Facility, a correctional officer thought the 50 years of time were a mistake and double-checked with Rankin County Circuit Court to make sure the burglary sentences were indeed consecutive, not concurrent....

Moore's new lawyer, veteran defense attorney Tom Fortner, said the 50 years “seems like an awfully harsh sentence for a young person without a prior felony. There are a lot of people convicted for worse crimes who aren’t getting 50 years in prison.”  Fortner asked Judge Emfinger to reconsider his client’s case, saying his then-defense lawyer, Colette, failed to make clear to Moore how soon he would be eligible for parole.  Moore initially believed he would be eligible for parole as early as 2017, but it turned out he won’t be eligible until at least 2025. His tentative release date is 2061.

I find this case so very interesting and blogworthy because it strikes me as a a kind of Rorschach test for assessing the state and problems with modern sentencing systems. Though the article focuses on the severe sentence Moore got at the end of this story, one could reasonably complain about all the sentencing leniency he received for his considerable prior low-level offending. Similarly, though the article suggests it was peculiar and worrisome the local DA pushed for a 50-year sentence in a plea deal, one could reasonably wonder why a sentencing judge did not seem troubled by imposing this sentence. And while a 50-year prison term seems quite extreme for just a series of (minor?) burglary offenses, one could argue that this case was sentence just right if Moore can work hard to improve himself while incarcerated so as to earn parole after serving only 12 years.

May 3, 2016 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5)

Monday, May 2, 2016

"Prosecutorial Analytics"

The title of this post is the title of this interesting-looking new article by Jason Kreag now avaible via SSRN. Here is the abstract:

The institution of the prosecutor has more power than any other in the criminal justice system. What is more, prosecutorial power is often unreviewable as a result of limited constitutional regulation and the fact that it is increasingly exercised in private and semi-private settings as the system has become more administrative and less adversarial. Despite this vast, unreviewable power, prosecutors often rely on crude performance measures focused on conviction rates.  The focus on conviction rates fails to capture and adequately evaluate the breadth of prosecutorial decision-making.

We can do better by fully implementing analytics as a tool to evaluate the prosecutorial function.  This tool has revolutionized crime-fighting.  Yet, it has been conspicuously absent as a tool to improve other aspects of the criminal justice system.  This Article demonstrates the promise of prosecutorial analytics to improve oversight and to promote systemic interests in justice, fairness, and transparency. It offers concrete examples of how analytics can 1) help eliminate race-based jury selection practices; 2) minimize prosecutorial misconduct; 3) uncover whether undesirable arbitrary factors shape prosecutorial discretion; and 4) provide better metrics for the judiciary, practitioners, and the public to evaluate prosecutorial performance.

May 2, 2016 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Digging deeply into Virginia's crowded prisons and parole paractices

A local public radio station in Virginia now has available at this link a detailed look as corrections practices in the state.  The umbrella title for all the coverage is "Crowded Prisons, Rare Parole: A Five Part Series," and here are the subheadings and introductions for each part of the series:

May 2, 2016 in Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Would prosecutors be less aggressive if significantly more monies were devoted to indigent criminal defense?

The question in the title of this post is the big question that lingers for me after review of this important New York Times op-ed authored by John Pfaff over the weekend.  The piece provides data to back up John's frequent Twitter lament that problems with indigent defense funding do not get enough attention nor play a sufficient role in analyses of problems with modern criminal justice systems.  The commentary, headlined "A Mockery of Justice for the Poor," merits a full read and here are a few key excertps:

In the landmark case Gideon v. Wainwright, the Supreme Court held in 1963 that the state or local government had to provide a lawyer to any defendant facing prison time who could not afford his or her own.  This was no minor decision.  Approximately 80 percent of all state criminal defendants in the United States qualify for a government­provided lawyer.

Yet despite this constitutional guarantee, state and county spending on lawyers for the poor amounts to only $2.3 billion — barely 1 percent of the more than $200 billion governments spend annually on criminal justice.  Worse, since 1995, real spending on indigent defense has fallen, by 2 percent, even as the number of felony cases has risen by approximately 40 percent.

Not surprisingly, public defense finds itself starved of resources while facing impossible caseloads that mock the idea of justice for the poor.  In Fresno, Calif., for instance, public defenders have caseloads that are four times the recommended maximum of around 150. In Minnesota, one public defender followed by a reporter estimated that he had about 12 minutes to devote to each client that day.  There is no way these lawyers can manage the cases being thrown at them.

In New Orleans, caseloads are so high that the parish’s public defender office has started to refuse to take cases, including murder cases.  Public defender offices in other states, including Florida, Missouri, New York and Pennsylvania, have taken similar steps when caseloads have grown too heavy.  To make things worse, 43 states now require indigent defendants to pay at least a portion of their lawyers’ fees, even though these defendants are by definition indisputably poor....

There is, however, a way out of this, one that the presidential candidates of both parties should embrace, one that should have broad bipartisan appeal. And it is an approach that no one is talking about.

The federal government, which now provides just a few million dollars per year to prop up local indigent defense services, could make an annual grant of $4 billion to state and local governments for indigent defense.  This is a mere 0.3 percent of the federal government’s approximately $1.2 trillion discretionary budget.  This money would triple spending on indigent defense, especially if the grant was tied to pre­existing spending by local governments so they couldn’t just cut their own spending one­-for-­one with the grant.

For Democrats, this plan would target a major cost of poverty and inequality and, because of the correlation between wealth and race, it would tackle at least some of the racial imbalances that permeate the criminal justice system.  For Republicans, who worry about state overreach and the government’s ability to oppress its citizens, meaningful public defense ensures that the poor, too, are able to check the state when it is acting in its most powerful capacity.

Funding indigent defense would also help scale back mass incarceration, a goal both parties share.  My research has shown that the primary source of prison growth in the 1990s and 2000s has been prosecutors’ filing of felony charges against more and more arrestees, many of whom in the past would have faced misdemeanor charges or no charges at all. Ensuring that prosecutors’ opponents are able to do their jobs competently would dampen prosecutorial aggressiveness.

Tellingly, as public defender caseloads have soared amid shrinking budgets, prosecutor caseloads appear to have held relatively steady, as funding and hiring of prosecutors generally rose over roughly the last 20 years.  Public defenders find themselves at an increasing disadvantage, surely contributing to our nation’s inability to really rein in prison population growth.  If defendants had well-­funded, effective representation, our adversarial system would do what it is intended to do.  What we have right now, however, simply is not adversarial: relatively well-­funded, well-­staffed prosecutor offices square off against public defenders whose caseloads defy imagination.

Funding public defense would ensure that poor people’s constitutional rights are protected, would advance a commitment to justice shared by liberals and conservatives alike, and would help roll back our staggering prison population.  It is also feasible, cheap by federal standards, and would have powerful, long­lasting effects.

I agree 100% with John's call for much greater funding of public defense — although I would much prefer a federal law that urged states to link criminal defense funding/spending to criminal prosecution funding/spending. I am not keen to have federal taxpayers provide an expensive "justice bailout" for all states disinclined to tax their own citizens to pay for constitutionally-required services for those they seek to (over)prosecute. (Indeed, I fear that at least some states now doing significant sentencing reform because of prison bills coming due might use clever accounting to afford more prison beds for more offenders if they get a massive yearly influx of federal cash to cover defense services.)

But I really question the notion that greater funding of public defense "would dampen prosecutorial aggressiveness" based on what I see in the operation of the federal criminal justice system. Though certainly not perfectly funded, federal public defenders seem to me to be among the best funded (and certainly the most consistently dedicated and capable and knowledgeable and experienced) of all defense phalanxes that I have seen. And yet I have seen precious little evidence that federal prosecutors are less aggressive because they are frequently facing these defense attorneys in federal criminal cases. (And, of course, we the very largest increase in any jurisdiction's prison population and the lengthy of sentences served over the last 30 years has been at the federal level.)

Moreover, in a few cases in which I have served as an expert witness or amicus at sentencing, I have sometimes perceived that certain federal prosecutors get even more aggressive when they realize that a particular defendant has the resources and personnel needed to put up an especially vigorous defense. (Indeed, I expressly warn some defense attorneys when they seek my formal assistance in a low-profile case that they should consider whether my involvement may risk doing more harm than good due to possible prosecutorial reaction to my involvement.) I do not mean to assert that federal prosecutors are distinctly unfair or uniquely aggressive when going after well-defended defendants, but I do mean to question whether it is really likely that prosecutors will be generally less likely to "strike hard blows" if they know the other side has more ability to defend against those blows.

That said, I do think better funding of state criminal defense is likely to better deter (or later identify) prosecutorial misconduct, and it also could and should have salutory effects on other aspects of state criminal justice systems --- e.g., better funded indigent defense services should be better able to focus on parole systems and expungement efforts and other back-end services for indigent defendants, and perhaps they also would bring more needed strategic constitutional litigation to assail particularly troublesome practices in some state systems. But, to wrap up, I think the only sure-fire way to "dampen prosecutorial aggressiveness," other than to reduce the number of prosecutors, is to dramatically reduce the number of crimes on the books and make sure (through mens rea and jury reforms) that prosecutors have a little more fear of losing when they first think about filing felony charges.

May 2, 2016 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

At SCOTUS, "age-old principes of conspiracy law" produces brand new division of Justices

More than six months after oral argument, the Supreme Court this morning finally released its opinion in Ocasio v. United States, No. 14-361 (S. Ct. May 2, 2016) (available here), which concerns the application of a federal conspiracy law surrounding extortion. Justice Alito wrote the opinion for the Court, and here is how it gets started:

Petitioner Samuel Ocasio, a former officer in the Baltimore Police Department, participated in a kickback scheme with the owners of a local auto repair shop.  When petitioner and other Baltimore officers reported to the scene of an auto accident, they persuaded the owners of damaged cars to have their vehicles towed to the repair shop, and in exchange for this service the officers received payments from the shopowners.  Petitioner was convicted of obtaining money from the shopowners under color of official right, in violation of the Hobbs Act, 18 U. S. C. §1951, and of conspiring to violate the Hobbs Act, in violation of 18 U. S. C. §371. He now challenges his conspiracy conviction, contending that, as a matter of law, he cannot be convicted of conspiring with the shopowners to obtain money from them under color of official right. We reject this argument because it is contrary to age-old principles of conspiracy law.

Few should be surprised that Justice Alito in Ocasio was not moved by a criminal defendant's effort to make more challenging pursuit of a conspiracy charge (a type of crime Judge Learned Hand famously describes as the "darling of the modern prosecutor's nursery").  But I was certainly surprised with how the votes of the other seven Justices broke down:

ALITO, J., delivered the opinion of the Court, in which KENNEDY, GINSBURG, BREYER, and KAGAN, JJ., joined. BREYER, J., filed a concurring opinion. THOMAS, J., filed a dissenting opinion. SOTOMAYOR, J., filed a dissenting opinion, in which ROBERTS, C. J., joined.

Because I do not spend all that much time thinking about either extortion or conspiracy, I doubt I will have much more to say about Ocasio. But I would be grateful to hear from readers in the comments as to whether they think this opinion was worth the wait and/or whether the unusual divides of the Justices has a possible significance beyond this one case.

May 2, 2016 in Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Justice Breyer dissents alone(!) in California capital case concerning long delays before execution

At the end of this morning's Supreme Court order list, Justice Breyer has a brief two-page dissent from the Court's decision to deny certiorari review in a capital case in which "Richard Boyer [who] was initially sentenced to death 32 years ago" requested that the Justices "consider whether the Eighth Amendment allows a State to keep a prisoner incarcerated under threat of execution for so long."  Here is part of what Justice Breyer has to say:

These delays are the result of a system that the California Commission on the Fair Administration of Justice (Commission), an arm of the State of California, see Cal. S. Res. 44 (2004), has labeled “dysfunctional.” Report and Recommendations on the Administration of the Death Penalty in California 6 (2008)....  It noted that many prisoners had died of natural causes before their sentences were carried out, and more California death row inmates had committed suicide than had been executed by the State.  Indeed, only a small, apparently random set of death row inmates had been executed. See ibid. A vast and growing majority remained incarcerated, like Boyer, on death row under a threat of execution for ever longer periods of time....

Put simply, California’s costly “administration of the death penalty” likely embodies “three fundamental defects” about which I have previously written: “(1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose.”  Glossip v. Gross, 576 U. S. ___, ___ (2015) (BREYER, J., dissenting) (slip op., at 2); see Lackey v. Texas, 514 U. S. 1045 (1995) (memorandum of Stevens, J., respecting denial of certiorari); see also Valle v. Florida, 564 U. S. 1067 (2011) (BREYER, J., dissenting from denial of stay); Knight v. Florida, 528 U. S. 990, 993 (1999) (BREYER, J., dissenting from denial of certiorari). 

Notably, not a single other Justice joined this dissent, not even Justice Ginsburg who was along for ride a little less than a year ago when Justice Breyer wrote his anti-death penalty magnum opus dissent in Glossip.  That reality reinforces my belief that death penalty abolitionists should not be especially hopeful that a majority of Justices will find capital punishment per se unconstitutional anytime soon.

May 2, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Reviewing the type of federal drug case that the SRCA should most impact

Mandatory_minimums_1abe826ceaaedee05283c916fe4b2585.nbcnews-ux-600-480This lengthy new NBC news piece, headlined "As Drug Sentencing Debate Rages, 'Ridiculous' Sentences Persist," focuses on one notable federal drug defendant subject to a notable federal drug mandatory minimum that could be impacted by federal statutory sentencing reform. Here are excerpts:

When he was an addict and petty criminal, Leo Guthmiller knew little, and cared less, about the federal government's harsh drug sentencing laws. The worst he'd endured was 90 days at the county lockup in Lincoln, Nebraska.

Then, last April, nearly two years after he'd stopped popping painkillers and smoking methamphetamine, Guthmiller was arrested by two federal agents as he headed for a drug counseling session. He later learned why: a junkie and his girlfriend, facing stiff prison sentences, had told investigators that Guthmiller had introduced them to his meth dealer around the time he was getting sober. That made him the middleman in a street-level drug distribution scheme.

Because this was a federal case, and the amount of meth exceeded 500 grams, or 1.1 pounds, Guthmiller was suddenly facing at least 10 years behind bars as a co-conspirator.... The charge thrust him, unwittingly, into a raging debate over a pillar of America's war on drugs: mandatory-minimum sentences. Intended to sideline high-level traffickers, the laws have been used to sweep thousands of nonviolent, small-time offenders into epic prison terms....

Guthmiller didn't dispute the couple's accusation. But he bristled at the government's portrayal of him as a scheming operative. Besides, he was a changed man: sober, working, studying for his GED, leading AA meetings, completing a drug court program, newly married. Still, he pleaded guilty, unwilling to risk a trial that could end in an even longer prison term. "I'm not an innocent person, but at the same time this is all a bit much, I feel," Guthmiller told NBC News.

At his sentencing in mid-February, U.S. District Court Judge John Gerrard agreed. He praised Guthmiller's turnaround, but said federal drug statutes gave him no choice. He called the case "Exhibit A" on why Congress needed to pass The Sentencing Reform and Corrections Act, which would give judges more flexibility. "A 10-year mandatory minimum sentence in a case like this is absolutely ridiculous," Gerrard said from the bench. "And the only reason I am imposing the sentence that I am imposing today is because I have to."...

The judge's remarks caught the attention of the Washington, D.C., advocacy group Families Against Mandatory Minimums. As he prepared to spend the next decade behind bars, Guthmiller found himself cast as a case study in America's unforgiving drug laws. "The whole idea is these 10-year sentences were written by Congress to go after serious drug offenders, and they're being applied to a guy who is home and is going to drive himself to prison," said Kevin Ring, the group's vice president. "He obviously isn't this major criminal that everyone should be so scared of."

This is a key point in the drug-law reform effort, which has inspired an unlikely alliance among Democrats and Republicans, many of whom gathered at the White House last week to discuss their campaign. Mandatory minimum sentences, toughened during 1980s crime panics, established criteria under which judges had to impose lengthy prison terms for drug trafficking. The penalties depended on the type of drug, the amount of it, the offender's criminal history and the nature of the crime — including whether the offense involved violence, weapons or children. The new laws triggered an explosion in the U.S. prison population, contributing to a dramatic decline in crime rates but also costing taxpayers millions.

That cost-benefit balance has since tipped. Researchers now say that mass incarceration's impact on the crime rate has ebbed. Studies show that the likelihood of punishment, rather than the length of a prison sentence, is more likely to deter criminals. And there are now millions of nonviolent ex-offenders — a disproportionate number of whom are black — unable to contribute to the economy, including many who return to crime. Reformers argue that the money America spends on prisons would be better used for cops, schools and alternatives to jail, such as probation and drug courts.

In a 2011 report to Congress, the U.S. Sentencing Commission found that mandatory minimums focused too heavily on the amount of drugs and not enough on the offender's role in the trafficking operation. The commission has since loosened some of its guidelines retroactively, allowing thousands of nonviolent, low-level drug offenders to leave prison early. President Barack Obama joined the effort by granting clemency to many others.

Those moves are considered Band-Aids compared to the larger fix offered by the Sentencing Reform Act, legislation that would allow judges to impose shorter prison terms for bit players. But the bipartisan bill is bogged down by election-year politics. The Justice Department, meanwhile, has tried to change the system from within, ordering federal prosecutors to focus on high-level dealers. It appears to be working: the number of mandatory-minimum cases has dropped to 45 percent of all federal drug cases, down from 66.8 percent in 2007.

John Higgins, chief of the narcotics unit at the U.S. Attorney's Office in Nebraska, said in a statement that his prosecutors followed the Justice Department's advice, seeking mandatory minimums "only in those cases that warrant it." That included Guthmiller's, he said. He declined to go into detail, but pointed to court hearings in which prosecutors alleged that Guthmiller's 2013 matchmaking between the dealer and the couple led to the sale of 15-pounds of meth. "Methamphetamine is the number one drug threat in Nebraska," Higgins said.

May 2, 2016 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5)

Another prominent elderly corrupt politician presenting dynamic federal sentencing issues

NY-DK527_NYCHAR_11U_20150122183914This lengthy Wall Street Journal article, headlined "Sheldon Silver Set to Be Sentenced: Judge has wide leeway as prosecution asks for long prison term, and defense seeks leniency for the former Assembly speaker," reports on issues surrounding a high-profile politician's federal sentencing scheduled for tomorrow in New York. Here are excerpts:

A federal judge is expected to decide Tuesday whether former New York state Assembly Speaker Sheldon Silver deserves a long prison sentence for years of corruption, or leniency because he is ill and says he is sorry.

Leading up to the decision, lawyers for Mr. Silver have filed letters of support from ex-colleagues, constituents, family members and even a former employee at a Chinese restaurant he frequented. “I know that Sheldon Silver has been convicted, but please consider his kind personality and his support to the community,” wrote Fei Chen, who was a cook at Nom Wah Tea Parlor in Manhattan’s Chinatown.

The endorsement is part of a trove of materials from both the prosecution and defense that reflect the range of factors judges are supposed to consider in public-corruption cases and the latitude they have in deciding on punishment. Judges in cases like Mr. Silver’s grapple with how to account for breaking the public trust, and to what extent a sentence should serve as a deterrent to future crime.

Mr. Silver, a Manhattan Democrat who served as Assembly speaker for more than two decades, was convicted of honest-services fraud, extortion and money laundering. Prosecutors said Mr. Silver, 72 years old, netted about $4 million in kickbacks from schemes involving a real-estate company and an oncologist. Attorneys for Mr. Silver have said they would appeal.

Prosecutors have asked U.S. District Judge Valerie Caproni for a prison sentence greater than any previously imposed on legislators convicted of public corruption in the state. Court filings suggest the longest sentence for such an official was 14 years. “Silver exploited the vast political power entrusted in him by the public to serve himself,” prosecutors wrote.

Defense lawyers have asked for leniency, suggesting “rigorous community service.” The former legislator also wrote an apology letter to the judge. “I failed the people of New York,” Mr. Silver’s letter said.

U.S. law says judges should decide sentences based not only on the offense, but also the defendant’s “history and characteristics.” Also relevant, the law says, are deterrence, public protection and the needs of the defendant, including medical care. In court filings, Mr. Silver’s lawyers have highlighted his prostate cancer, bile-duct obstruction and knee problems.

For judges, sentencing in public-corruption cases presents a particular quandary: While the convicted official usually isn’t considered a threat to public safety, or capable of committing the same crimes in the future, the government has an incentive to punish such officials harshly to deter others from similar offenses.

“The difficulty you have in high-profile cases is that there is a philosophical argument that general deterrence sometimes trumps all other factors,” said Benjamin Brafman, a defense attorney not connected to the Silver case who represented Carl Kruger, a former state senator who was convicted on public-corruption charges and sentenced to seven years.

In the case of Mr. Silver, Judge Caproni can also consider prosecutors’ evidence that Mr. Silver used his position to help two women with whom he had extramarital affairs because, like the letters, it speaks to his character. In legal filings, attorneys for Mr. Silver said the allegations were unproven.

In recent years, public-corruption cases have garnered more attention, particularly because prosecutors have become increasingly vocal when bringing charges, said Deborah Gramiccioni, executive director of NYU’s Center on the Administration of Criminal Law. “The public’s indignation perhaps seems more pronounced,” said Ms. Gramiccioni, a former federal prosecutor who worked on public-corruption cases. But such indignation doesn’t necessarily influence judges’ decisions, she said....

Data show that New York judges often diverge from the federal guidelines when awarding prison sentences. Of 3,301 cases sentenced in federal court in New York in fiscal 2015, judges awarded sentences within the guideline range in 29.5% of cases, compared with 47.3% nationwide, according to federal statistics. Of 544 fraud cases in New York, 28.5% of sentences fell within the guidelines. Just five people received sentences above the guideline range.

In Mr. Silver’s case, sentencing guidelines suggest a range from about 22 to 27 years. In sentencing filings, both prosecution and defense attorneys cite many of the same public-corruption cases, including that of Mr. Kruger, the former state senator. Attorneys for Mr. Silver note that Mr. Kruger was sentenced to well below the federal recommendations. But prosecutors note that Mr. Kruger pleaded guilty, which they view as a crucial difference. “Unlike Kruger, here Sheldon Silver has accepted no responsibility and shown no remorse for his crimes,” they said.

May 2, 2016 in Booker in district courts, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Saturday, April 30, 2016

"Why Vague Sentencing Guidelines Violate the Due Process Clause"

The title of this post is the title of this new article by Kelsey Heilman now available via SSRN. Here is the abstract:

The United States Sentencing Guidelines are the mandatory starting point and the lodestone for the sentences of 75,000 federal defendants each year.  Though advisory after the 2005 Supreme Court decision in United States v. Booker, the Guidelines continue to exert tremendous influence over federal sentencing practice.  Last term, in Johnson v. United States, the Supreme Court struck down as unconstitutionally vague a sentencing provision of the Armed Career Criminals Act.  In the ensuing year, a circuit split developed regarding whether that decision dooms a textually identical provision of the Guidelines, with some courts holding advisory sentencing guidelines are completely immune from due process challenges.  In this Article, I argue the Guidelines violate the Due Process Clause of the United States Constitution if they are so vague they deny fair notice to defendants and invite arbitrary enforcement by judges.

April 30, 2016 in Federal Sentencing Guidelines, Offender Characteristics, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (3)

Emerging news about two new notable gun control and gun safety efforts

These two recent stories about gun control and gun safety efforts from the folks in California and from the federal government have caught my eye lately:

Long-time readers ikely know I have long thought both governments and others ought to be investing in smart gun technologies to try to cut down on gun violence and related harms. At the very least, I think modern guns ought to have some kind of built in technology that could provide, though could/GPS technology, some kind of digital trace whenever used by someone other than their licensed owner (I have in mind a kind of Lojack system that would only report when the licensed owner is not the user).

April 30, 2016 in Gun policy and sentencing, Second Amendment issues, Who Sentences? | Permalink | Comments (1)

Georgia continuing to lead and innovate state sentencing reform with new focus on mass probation

The most astute observers of criminal justice systems realize that tackling mass incarceration will always be an uphill battle if we do not also look closely at the realities of (even more massive) modern probation and other laws and rules that place many persons under significant criminal justice supervision.  Consequently, I am encourage to see that the folks in Georgia, who have already been at the forefront of state-level sentencing reforms, are now turning to this issue. This local article, headlined "Nathan Deal aims to cut ‘extraordinarily high’ number of Georgia offenders on probation," tells the basic story:

Fresh off another round of changes to Georgia’s criminal justice system, Gov. Nathan Deal said he’ll urge lawmakers next year to tackle the stubborn problem of the “extraordinarily high” number of offenders on probation in Georgia. He wants to target the rise of “split sentencing” in Georgia – a practice in which a defendant serves part of the sentence behind bars, and then often a greater time outside prison. He called it an “unusual phenomenon, and we don’t know why it’s happening.”

“We have a significantly high number of people who are under probation supervision – an extraordinarily high number compared with most other states,” he said. “You’re going to see the general area of probation being a focus point.” Georgia led the nation in placing its citizens on probation in 2015 and topped the charts for its probation rate, which critics said reflected an overuse of the system.

The state moved to reform the misdemeanor probation system after an AJC investigation showed courts contract with private probation companies to “supervise” and collect payments from people who can’t afford to pay off expensive traffic tickets and other misdemeanor fines on the day they go to court. Deal’s Council on Criminal Justice Reform has recommended that lawmakers consider taking another step in 2017 by decriminalizing most traffic violations and rethinking the length of probation terms.

April 30, 2016 in Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)