July 28, 2007
Around the blogosphere
I'm on the road again for much of the weekend, but new posts at the following blog provide lots of good weekend reading for sentencing fans:
- Capital Defense Weekly
- Crime and Consequences
- Corrections Sentencing
- Sex Crimes
- White Collar Crime Prof
Sentencing justice for Nicole Richie?
Because I cannot resist bringing a little People magazine to this blog, here's the story of Nicole Richie's recent sentencing on DUI charges:
Nicole Richie pleaded guilty to DUI and was sentenced to four days in jail on Friday in a Glendale, Calif., courthouse — just one month after her pal Paris Hilton walked free from behind bars. She also agreed to serve a three-year probation term, and must enroll in an alcohol education program. She was also fined $2,048.
During the hearing, Los Angeles County Commissioner Steven Lubell admonished Richie, saying: "Someone could've gotten killed. You need to understand that driving under the influence is extremely dangerous." Richie was given the option of serving her time in a paid city jail, which is seen as a cushier facility than a county jail. She was given no surrender date, but must complete her jail time before Sept. 28.
Is this sentencing justice? As detailed in some of the posts linked below, I tend to think most sentencings for drunk driving tend to be too lenient.
- Getting tougher on drunk driving
- Why do we worry so much more about sex offenders than drunk drivers?
- Today's discussion topic: is incarceration a good thing for certain high-profile defendants?
July 27, 2007
Qwest CEO gets six years and mad money
As detailed in this CNN piece, the "former chief executive of Qwest Communications International, Joseph Nacchio, was sentenced on Friday to six years in prison and ordered to forfeit $52 million in stock gains from insider trading." Also, "Nacchio was fined an additional $19 million in the case presided over by U.S. District Judge Edward Nottingham."
Recent related post:
A shaming sentence that's fowl play
Though I view shaming sanctions as a topic for serious debate, this story reporting on a novel shaming sentence imposed by an Ohio judge certainly seems more likely to prompt frivolity:
The Best Little Whorehouse is not in Painesville. And Municipal Judge Michael Cicconetti, known for dispensing unusual sentences, doesn't want one sprouting in his small town. So Cicconetti ordered three men charged with soliciting sex to take turns dressing in a bright yellow chicken costume while carrying a sign that reads "No Chicken Ranch in Painesville."
The sign and costume refer to the "World Famous Chicken Ranch," a brothel in Nevada where sex-for-money is legal. The costume was borrowed from a woman who wears it to cheer patients at a local hospice. Daniel Chapdelaine, 40, of Perry Township; Martin Soto, 44, of Ashtabula; and Fabian Rodriguez-Ramirez, 29, of Painesville; all pleaded guilty Wednesday to misdemeanor charges of soliciting sex from an undercover Painesville police officer earlier this summer. Cicconetti agreed to suspend a 30-day jail sentence if they wear the costume between 4 and 7 p.m. today outside Painesville City Court.
"We're trying to send a strong message that we won't tolerate this activity in the city," said Painesville probation supervisor David Washlock.
I wonder what the folks at PETA might say about this novel animalistic sentence.
Isn't going blind punishment enough?
As detailed in this AP story, this week a "Florida jail inmate was convicted of indecent exposure after a guard complained that he had masturbated in his cell." Here are more details:
A jury took 45 minutes to convict Terry Lee Alexander, 20, of the misdemeanor on Wednesday. The judge sentenced him to 60 days in the county jail. He had faced up to a year.
In November, Broward County Deputy Coryus Veal, who was monitoring Alexander's cell from a centrally located control room, saw him masturbating while he was sitting on his bunk, alone in his cell. She testified that she brought the charge against him the third time he masturbated in view of her.
Veal has brought similar charges against seven other inmates in six months. The sheriff's office encourages deputies to file criminal charges to discourage masturbating in the county's jails, said Elliot Cohen, an agency spokesman. He said privacy is one of the rights inmate give up in jail.
Kathleen McHugh, Alexander's attorney, said her client did nothing wrong. She said he was alone in his cell, which was not open to the public. "I think the government's gone awry," McHugh said. "Has it been a slow year in crime that they've got to go prosecute masturbation in the Broward County Jail?"
For those interested in serious Friday debate, please discuss in the comments whether Mr. Alexander could make any reasonable constitutional arguments against his prosecution and sentencing.
For those interested in comical Friday fun, please discuss in the comments possible alternative titles for this post (I considered and rejected as too crude "What a jerk!" and "What ever happened to compassionate release for prisoners?"). Commentors can perhaps gain inspiration from this slang list, but please try to keep this blog family friendly.
Sentencing reqwests in Qwest sentencing
As detailed in this story from the Rocky Mountain News, today Joe Nacchio, the former Qwest CEO, will be sentenced by US District Judge Edward Nottingham following his April conviction on 19 counts of insider trading. Here are highlights of what the parties are requesting Judge Nottingham to consider:
Prosecutors are asking Nottingham to order Nacchio to forfeit the $52 million [allegedly grossed on illegal stock sales].... Prosecutors also want a $19 million fine — the maximum fine of $1 million for each count on which the jury returned a guilty verdict. And they’re asking for the maximum prison sentence that federal guidelines will allow — seven years, three months. "Any lesser sentence would send a message of tolerance of the egregious behavior proven at trial," Assistant U.S. Attorney James Hearty wrote in the government’s sentencing brief.
Nacchio’s attorneys are asking for a lesser prison sentence, though they have not stated publicly what term they’re seeking. They’ve asked Nottingham to consider two issues when deciding his fate: the health of two immediate family members and Nacchio’s charitable works. The defense has not said which family members would be affected if Nacchio goes to prison, but they are believed to be his oldest son, David, who has attempted suicide, and Nacchio’s elderly mother. Nacchio’s lawyers also say his fine should be a maximum of $6 million, and he should be ordered to forfeit no more than $1.8 million — the amount a defense- hired expert has determined was the financial gain Nacchio enjoyed because of the nonpublic, or "insider," information.
A group of local attorneys polled by the Rocky Mountain News predicted Nottingham will sentence Nacchio to five to six years in prison. They disagreed on the fine and forfeiture, though most said it’s unlikely Nottingham will agree with the defense’s $1.8 million argument.
Any predictions, informed readers?
July 26, 2007
Off to DC for ACS
I am about to hit the road for Washington DC to participate in the Fifth Annual ACS National Convention. A complete schedule of events is available at this link, and I'll be moderating a great panel of great judges discussing "The Future of Federal Sentencing: The Courts Continue to Sort it Out."
Blogging may be light through the weekend, though I hope to have pockets on time on-line.
A judicial pitch for making crack reductions retroactive
Sentencing Hall of Famer Judge Lynn Adelman has kindly allowed me to post the letter he recently sent to the US Sentencing Commission urging the USSC to make its new crack guidelines retroactive. Here are excertps:
The Sentencing Commission recently took the estimable step of proposing guideline amendments to reduce the sentencing ranges for cases involving crack cocaine. The Commission also produced another detailed report on cocaine and federal sentencing policy, reiterating its consistent position that the 100:1 disparity between crack and powder cocaine is unjustified and undermines the objectives of the Sentencing Reform Act. The amendments will, as you know, go into effect on November 1, 2007, absent congressional disapproval.
The Commission has not yet decided whether to make those amendments retroactive pursuant to U.S.S.G. § 1B1.10. As you know, under 18 U.S.C. § 3582(c), district courts are authorized to reduce previously imposed terms of imprisonment that were based on a sentencing range subsequently lowered by the Commission, but only if the Commission specifically designates the amendment for retroactive application. I urge the Commission to list the crack cocaine amendment as one of those retroactively applicable under § 1B1.10(c)....
It may be argued that allowing retroactive application of the crack amendment will open the district courts to a flood of § 3582(c) motions. Such concerns are overstated. Motions under § 3582(c) may be resolved without a hearing, and without the presence of the defendant. See Fed. R. Crim. P. 43(b)(4). Further, since the court will have already determined drug weight, no additional fact-finding will be required. Finally, even if the Commission does not make the crack amendment retroactive, it seems likely that many prisoners sentenced under the old guidelines will nevertheless seek relief via motions under 28 U.S.C. §§ 2255 or 2241, or papers bearing other, more creative labeling. Even if retroactive application does create more work for the courts, it seems well worth it to achieve fairer, more proportionate sentences, which actually promote respect for the law.
Can Congress use the power of the purse to commute the border agents' sentences?
I hope to get some help from con law scholars to figure out whether the congressional efforts described in this article from the El Paso Times are constitutionally kosher:
A vote by the House of Representatives on Wednesday to free two former El Paso Border Patrol agents imprisoned for the shooting of a drug smuggler bolstered hope among relatives that they will be released soon. The House vote, in effect, would block the Bureau of Prisons from spending any money to incarcerate Ignacio Ramos and Alonso Compean, who are serving, respectively, 11- and 12-year federal prison sentences.... The Senate has yet to take up the measure....
The case of Ramos and Compean has become a national cause célebre for conservatives, who believed their conviction and imprisonment was unfair and who asked for a presidential pardon. [U.S. Representative Silvestre] Reyes, and U.S. Sens. John Cornyn and Kay Bailey Hutchison, both R-Texas, have said President Bush should commute the ex-agents' sentences. Last week Reyes, in a letter to Bush, said the sentences should be commuted because "while I do not condone the actions of Mr. Ramos and Mr. Compean, I do believe they received excessive sentences due to mandatory sentencing guidelines."...
The voice vote by the House came during a debate on a bill funding the Justice Department for the fiscal year beginning Oct. 1. "What this does is release these two individuals while the appeal goes on," said Rep. Ted Poe, R-Texas.
I certainly see a strong argument that, because the Constitution only gives the President the power of clemency, this kind of "funding commutation" perhaps is a violation of the separation of powers. And yet, since the power of the purse is profound, I could also see strength in the argument that Congress should have broad authority to control how monies are spent in the federal criminal justice system.
Any deep constitutional thoughts this Thursday, dear readers?
Sixth Circuit reverses extreme upward variance in sex offender case
Adding to its impressive corpus of post-Booker jurisprudence, a split panel of the Sixth Circuit today in US v. Poynter, No. 05-6508 (6th Cir. July 25, 2007) (available here), reverses a large upward variance in a sex offense case. Here is how the opinion begins and one of many strong passages from the majority's analysis (per Judge Jeff Sutton and cites omitted):
Avery Poynter, 36 years old, pleaded guilty to traveling in interstate commerce for the purpose of engaging in illicit sexual conduct with two minors. After calculating a guidelines range of 188–235 months and considering the § 3553(a) factors, the district court imposed a 720-month sentence (the statutory maximum) because Poynter was a repeat child sex offender. Unable to conclude that this variance resulted from a reasonable application of § 3553, we reverse....
By relying on a problem common to all repeat sex offenders (recidivism) in increasing Poynter's sentence and by failing to offer meaningful distinctions between the risk that Poynter posed to the public and the risk that other sex offenders posed to the public, the district court left us little room to distinguish between Poynter and other sex offenders.... As utterly depraved as this crime is and as forever scarring as it must be to be victimized by it, not all repeat sex offenders deserve what amounts to a life sentence; otherwise, Congress would not have set a statutory range of 0–60 years. While there is no yardstick perfectly calibrated to measure one crime and one criminal from the next crime and the next criminal, there are certainly measurable differences between Poynter's situation and the situation of offenders who might warrant the statutory maximum or something approaching it.
Here is how Judge Siler's brief dissent begins:
I respectfully dissent, not because I think that my colleagues do not know the law, but because this is such a discretionary matter that I believe when the district court correctly calculates the Guidelines range and then considers the § 3553(a) factors, the sentence should be upheld, unless the court adds a factor which should not have been considered under § 3553(a) or unless the circumstances of the crime or the offender were such that no variance from the Guidelines could be justified.
Costs causing Colorado to consider changes
This effective article in the Rocky Mountain News, entitled "As inmate numbers swell, state scrambles for relief: Commission seeks ways to overhaul buckling system," provides some amazing statistics on Colorado's recent prison growth and the costs of this growth. Here are excerpts:
Colorado faces a nearly 25 percent increase in prison inmates during the next six years, a growth rate that has prompted a new look at how punishment is administered in the state. Unless lawmakers reverse the emphasis on incarceration, analysts now say, prisons can expect to house nearly 28,000 inmates in 2013, compared with 22,519 as of June 30, according to a report by the Division of Criminal Justice.
The financial ramifications are substantial.
- Each inmate costs state taxpayers an estimated $27,500 a year.
- The cost of corrections has shot up from 4 percent of the state's budget to 9 percent since 1993.
- The Department of Corrections' budget is more than $702 million, compared with $57 million in 1985.
The trend is so alarming that the state is preparing to launch a 26-member commission to study possible overhauls of how criminals are punished and for how long.
The dynamics of "fighting" a white-collar charge
Today's New York Law Journal has this piece, entitled "To Fight or Not to Fight?", that discusses the dynamics of plea choices for defendants facing white-collar charges. Here are a few snippets:
Trial by jury. It is the right of every American accused of a crime but one that is rarely exercised in white-collar cases. Last year, over 87 percent of defendants charged with federal fraud offenses plead guilty. Maybe the ultimate outcome for defendants facing criminal charges would be better if that changed....
Defense counsel must make as realistic an assessment as possible of the downside risk of conviction. The trial judge's sentencing practices must be researched, and a detailed guidelines analysis must be performed....
Like most good lawyering, advising a client whether his or her best interests are served by going to trial or pleading guilty is an art and not a science.
Death and the Sixth Circuit
I am consistently impressed with the Sixth Circuit work on non-capital sentencing issues (some recent examples are here and here and here and here). However, everyone else notices the deep and somewhat ugly divisions within the court on death penalty cases. These divisions were revealed again through the circuit's en banc 8-6 vote to uphold a death sentence in Getsy v. Mitchell, No. 03-3200 (6th Cir. July 25, 2007) (available here), a death sentence that the original panel had set aside as unconstitutionally disproportionate.
Lots of commentary can be found at ODPI and at DotD and at The Volokh Conspiracy and at Infinity Ranch. Ahh, if only the circuit's (more consequential) non-capital decisions would get so much thoughtful attention.
Related prior post:
July 25, 2007
Ninth Circuit addresses jurisdictional issues in face of appeal waiver
The Ninth Circuit today in US v. Castillo, No. 05-30401 (9th Cir. July 25, 2007) (available here), resolves through an en banc ruling an issue explained in the first sentence of the majority's ruling:
We granted en banc review in this case to resolve a question to which we have given inconsistent answers: Do we have jurisdiction to hear an appeal when the defendant entered a guilty plea in which he waived his right to appeal?
In case you don't want to have to read the full opinion, here is the majority's bottom line: "Regardless of whether a defendant enters into a conditional plea or an unconditional plea, we retain jurisdiction to hear the appeal."
Vick being sacked by the collateral consequences of an indictment
Earlier this week, as discussed here, USA Today had a long article discussing collateral consequences of a criminal conviction. But, as the on-going Michael Vick story highlights, just a criminal indictment can have profound consequences for the accused. The New York Times has this article covering the latest news on Vick:
The Atlanta Falcons were prepared to suspend quarterback Michael Vick for four games after he was indicted on federal felony charges related to a dogfighting operation before Commissioner Roger Goodell stepped in. On Monday, Goodell ordered Vick not to appear at training camp and the team to hold off on disciplining him.
Arthur Blank, the Falcons’ owner, speaking publicly for the first time since Vick was indicted last week, said the team had begun drafting the letter about the suspension when Goodell decided that the National Football League would conduct an investigation into the charges against Vick.... Blank said that he never asked Vick if he was involved in dogfighting — he spoke to Vick about putting himself in bad situations, Blank said — and that he had not spoken to Vick since last Wednesday.
More of the latest Vick coverage can be found in the Washington Post and in USA Today. Though the Falcons and the NFL are apparently making lawful employment decisions, it is interesting to see that Vick's employer and the league in which he works are essentially treating him as guilty until he is proven innocent.
These collateral consequences realities must ratchet up the pressure on Vick to plead guilty and cooperate with authorities even if he might have a real chance to contest the charges in court. At this point, Vick's lawyers are probably telling him that a quick plea deal and cooperation — rather than protracted and costly legal proceedings — likely presents Vick with the best hope of getting on with his football career and his normal(?) life.
Some recent related Vick posts:
The latest chapter in the California prison overcrowding saga
This AP story provides the basic details on the latest development in the on-going saga over California's prison overcrowding problems:
California's $7.8 billion prison reform plan will only make conditions worse behind bars, two federal judges said in ordering the creation of a judicial panel to recommend better ways to ease prison crowding. The move, which could lead to the capping of the inmate population or the early release of some prisoners, drew criticism from Gov. Arnold Schwarzenegger, who said he would appeal.
U.S. District Court Judges Lawrence Karlton of Sacramento and Thelton Henderson of San Francisco held a joint hearing on the matter in June and issued the simultaneous opinions Monday. They said the state's prison system has grown so large that conditions make it impossible to provide acceptable medical and mental health care to inmates.
Last spring, lawmakers agreed to build 53,000 new prison and jail cells as part of an ambitious $7.8 billion program to address a crisis that has been building for decades, but the judges rejected the plan. Karlton and Henderson said the state can't hire enough guards and medical professionals to provide proper care and oversight for the inmates it has now, let alone the thousands more who might be added through the building program. "From all that presently appears, new beds will not alleviate this problem but will aggravate it," Karlton wrote.
Thanks to the New York Times, the order from Judge Henderson can be accessed at this link. Also, the California Progress Report provides this extended analysis of the district judges' orders. And, the Sacramento Bee has this thoughtful editorial responding to the federal judges' new order. Here is how it ends:
None of these [California political] leaders seem to get it. The courts are concluding that they are the lawbreakers because of their refusals to confront the overcrowding crisis. This does not necessarily mean that the three-judge panel will order early release of inmates. In his decision, Henderson made clear he "would like nothing more" than to avoid such an order.
If state leaders would make some meaningful moves toward sentencing reform, parole, drug treatment programs, real rehabilitation and better medical care, it's still possible they could retain some control over the outcome of this legal showdown.
July 24, 2007
Seventh Circuit reverses sentence based on the right to allocute
The Seventh Circuit today in US v. Luepke, No. 06-3285 (7th Cir. July 24, 2007) (available here), reverses a sentence because of an allocution problem. Here is how the lengthy opinion in Luepke begins:
Following a plea of guilty to a charge of conspiracy to distribute and to possess with intent to distribute 50 grams or more of methamphetamine, see 21 U.S.C. §§ 841(b)(1)(B), 846, Michael Luepke was sentenced by the district court to 240 months’ imprisonment. He timely appeals his sentence. Because the district court did not afford him a meaningful opportunity to address the court prior to the imposition of sentence, we must vacate the sentence imposed and remand the case to the district court for a new sentencing proceeding.
Controversy over proposed Michigan sentencing reforms
This local article provides an effective review of the controversies brewing over Michigan Governor Jennifer Granholm's suggested changes to the state's sentencing laws. Here are excerpts:
Public safety is not state government leaders' priority. That is the reaction Livingston County Sheriff Bob Bezotte had upon learning about Gov. Jennifer Granholm's proposed reforms to the state's sentencing laws. "The state is trying to fix its problem by dumping (them) on the county," Bezotte said. "As far as I'm concerned, the state government is shirking its responsibility. Public safety is not one of their priorities."
The Granholm administration is pushing to change the state's sentencing laws so fewer criminals are locked in state prisons and county jails. However, Bezotte said the proposal will only land more people in the county jail, which continually sees overcrowding.
According to the proposed sentencing law reforms report, about 140 felonies — such as fourth-degree fleeing and eluding, felonious driving, negligent homicide and writing bad checks — would become one-year misdemeanors, which mean a potential jail sentence — not prison. The plan also calls for putting lower-level offenders behind bars for less time....
Attorney General Mike Cox as well as other law enforcement officials on Monday blasted the proposal, calling it "seriously flawed."
The state report disagrees with Bezotte's analysis of the likely impact, indicating that statewide county jail intake will be reduced by a net of 11,939 admissions each year.... "We need these sentencing reforms," Corrections spokesman Russ Marlan said. "If we want to see significant costs savings, we need to decrease the prison population." That's all well and good, local officials say, but the problems the state hopes to eliminate are simply being passed to the county governments.
Gearing up for two big-time white-collar sentencings
The papers today have reports on notable developments in two high-profile white-collar sentencings in the works:
- In the sentencing of Qwest CEO Joe Nacchio, this article discusses the plans for victims to testify at the sentencing hearing and this article also discusses Nacchio's "59-page request for bail pending appeal."
- In the sentencing of Conrad Black, this article details that his "legal team has just added a big gun as the battle over his punishment looms."
July 23, 2007
The latest lethal injection litigation in the Sunshine State
An Ocala judge interrupted a death penalty trial questioning whether the state's lethal injections are cruel and unusual punishment after telling the Department of Corrections its executions protocols are lacking. Fifth Circuit Court Judge Carven Angel gave the oral order to stop executions on Sunday after abruptly shutting down a week-long hearing in which lawyers for convicted killer Ian Lightbourne questioned Florida's death penalty procedures in the aftermath of the botched December execution of Angel Diaz....
[Judge] Angel, whose written order is expected to be released this afternoon, criticized the [state]'s revamped execution policy, telling lawyers that they were deficient, according to sources in the courtroom. The trial is slated to begin on Sept. 21, five weeks after corrections officials are to submit their revised protocols. The delay could also postpone the scheduled Nov. 15 execution of Mark Schwab and a Florida Supreme Court ruling on the death penalty, scheduled for oral arguments on Oct. 11 in anticipation of a resolution of the Lightbourne case.