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April 26, 2008

A strong argument for limiting prosecutorial immunity

In this commentary over at Reason, titled "Suing the DA: Should prosecutors be immune from civil lawsuits?", Radley Balko makes a strong case for affording prosecutor only qualified immunity, rather than absolutely immunity, for their official behavior.  Here are excerpts from the strong piece:

There's plenty of evidence that this [absolute immunity] shield from accountability is allowing some prosecutor's offices to run roughshod over civil rights. The New York-based Innocence Project reports that prosecutorial misconduct played a role in about 40 percent of DNA exonerations over the last decade or so. Such misconduct could include knowingly putting on false testimony, withholding exculpatory evidence from defense attorneys, and coercing witnesses, among other transgressions....

Downgrading prosecutorial immunity would not only go a long way toward puncturing the air of invincibility that pervades some prosecutors' offices, but the discovery process in the cases that are allowed to go forward might reveal other cases of misconduct or wrongful conviction.

We shouldn't allow every aggrieved defendant to sue his prosecutor. But in cases where someone is exonerated after being convicted of a crime, where there's clear evidence that something went terribly wrong at trial, and certainly where a single prosecutor has overseen more than one exoneration, allowing civil rights suits against these government officials in their capacity as government employees might shine some needed — if uncomfortable — sunlight on a part of the criminal justice system that has for too long been immune from real accountability.

April 26, 2008 in Who Sentences? | Permalink | Comments (17) | TrackBack

"Fixing our criminal sentencing system"

The title of this post is the title of this op-ed from the Boston Globe today.  Here are some excerpts:

A number of news stories this spring have shown us that the criminal sentencing system is out of line - both in Massachusetts and in the nation as a whole. The United States has not just the highest rate of incarceration in the world, but also one-fourth of all of the prisoners in the world.

What has led us to this? And what is it about our priorities that has us spending more on incarceration than higher education?...

When you look across the vast spectrum of crimes committed each year, so many of them can be traced back to drug and alcohol abuse and addiction. This is no secret, nor is the fact that more than 20 years of get-tough policies have not made a difference in drug-related crimes....

So what can we do this year, while the budget and the laws are still being written, and before our legislators recess for a season of campaigning?

This is a simple, cost-saving, and effective wish list:

  • Eliminate mandatory minimums for drug crimes to allow for parole eligibility.
  • Ensure meaningful post-incarceration supervision through parole or probation.
  • Resist calls for new mandatory minimum sentences that tie the hands of prosecutors, judges, and corrections officials.
  • Support policies that provide and promote drug treatment instead of incarceration.
  • Fully fund prison programs for treatment of mental illness, substance abuse, and training.

None of these ideas suggest that we should be soft on crime.  Rather, they represent measures that are smart on crime in ways that Massachusetts can afford — and will be more effective in reducing future crime than the status quo.

April 26, 2008 in Scope of Imprisonment | Permalink | Comments (10) | TrackBack

Looking at post-Baze realities in Florida

Yesterday's broadcast of NPR's "All Things Considered" had this segment titled "Opponents Challenge Death Penalty in Florida."  Here is the summary:

Florida officials are eager to resume carrying out death penalties following this month's Supreme Court decision, which found that Kentucky's use of lethal injection does not constitute cruel and unusual punishment.  State officials say Florida's lethal injection protocols follow what the Supreme Court approved in Kentucky.  But attorneys for death row inmates say Kentucky is different from Florida.

Some related pre- and post-Baze posts:

April 26, 2008 in Baze lethal injection case | Permalink | Comments (10) | TrackBack

April 25, 2008

Deep weekend thoughts from SSRN

What looks like a deep and interesting paper for weekend reading can be found here via SSRN.  The paper is titled "Facing the Consequences: The Abolitionist Challenge," and here is the abstract:

I argue that standard consequentialist considerations offered in support of punishment make for a weaker case than is usually assumed.  This is because consequentialist arguments for punishment rely on an overly broad conception of punishment that overlooks some of punishment's essential characteristics.  I argue in favor of a narrower conception that highlights the possibility of substantive, non-punitive alternatives to punishment capable of securing many of the same good consequences as punishment. In light of this possibility, I argue, Abolitionism, the view that punishment is unjustified, poses a serious challenge to consequentialist justifications of punishment.

April 25, 2008 in Purposes of Punishment and Sentencing | Permalink | Comments (5) | TrackBack

Intriguing Second Circuit ruling on sentencing rationales

Issuing an opinion that is not easily summarized (but involves state-federal disparities and co-defendant disparities), the Second Circuit sends us into the weekend with some thoughtful musings in its sentence reversals in US v. Williams, No. 05-4416 (2d Cir. Apr. 25, 2008) (available here). Here is the first paragraph of the opinion to whet Booker reasonableness appetites:

This is an appeal by the United States from judgments, which were entered in the United States District Court for the Southern District of New York, convicting the defendants Brian Williams and Samuel Shuler on their pleas of guilty to conspiracy to possess with the intent to distribute crack cocaine.  The appeal challenges the sentences imposed on the defendants by Judges McMahon and Brieant.  Judge McMahon sentenced Williams principally to a period of incarceration of 36 months, and Judge Brieant sentenced Shuler principally to a period of incarceration of 40 months. While the range prescribed by the Sentencing Guidelines is now 57 to 71 months, at the time the sentence was imposed it was 70 to 87 months.  The manner in which the significantly lower sentences were justified provides the basis for the appeal.

April 25, 2008 in Booker in the Circuits | Permalink | Comments (1) | TrackBack

Bloggy debate over the Snipes sentence

For two notably different perspectives on the 3-year prison sentence given to Wesley Snipes in federal court yesterday, check out these two blog posts:

In addition, SL&P's always provocative commentors have been having fun with this case and its outcome.

April 25, 2008 in Celebrity sentencings | Permalink | Comments (0) | TrackBack

Panty raid involving a sex offender

This local story provides a little (perverted?) levity at the end of a long work week:

Petaluma police officers seeking an explanation for why women's panties were discovered during a routine search of a male sex offender's home learned the underwear had been acquired from a surprising source.  Larry Allen Riebli, 45, is believed to have taken the garments from homes for sale during open houses, police said.

Riebli, who is on probation for a conviction for annoying or molesting a child, admitted taking the underwear during a search Tuesday of his Baywood Drive home, police said.  The panties were part of a cache of 25 to 30 pairs, about 20 of them purchased from stores, a handful bought from prostitutes and the remainder allegedly taken from houses up for sale, Deputy Sonoma County District Attorney James Patrick Casey said.

April 25, 2008 in Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

April 24, 2008

Wesley Snipes gets 3-year max prison sentence urged by prosecutors

This ABCNews report indicates that a federal sentencing judge today decided to max out Wesley Snipes for his tax evasion convictions:

A Florida judge sentenced the "Blade" movie star to 3 years in jail today. Snipes was convicted of tax fraud in February for not filing his income taxes for at least three years....

In February, a federal jury convicted Snipes on three misdemeanor counts of failing to file a tax return. Jurors acquitted Snipes of felony tax fraud and conspiracy charges that carry more significant punishment upon conviction.  Had he been found guilty of all charges filed against him, Snipes could have faced up to 16 years in prison.

An august legal journal, E!-Online, has more details here.  Another august law publication, TMZ.com, also has more here.

April 24, 2008 in Celebrity sentencings | Permalink | Comments (29) | TrackBack

Sentencing thoughts and predictions for US v. Snipes

This morning in Florida federal court brings the scheduled sentencing hearing for actor Wesley Snipes following his conviction on three misdemeanor tax evasion charges.  Here are some morning media links covering this interesting high-profile case:

Thanks to the wonders of the web, everyone can access the defense sentencing memorandum asking for a sentencing of probation at this link.  In addition, The Smoking Gun has available here the letters written to the sentencing judge by Denzel Washington and Woody Harrelson.

As for predictions, I would guess that the sentencing judge will split the difference here: I do not think Snipes will escape with probation, but I also doubt he will get the three-year max prison term.  In other words, I think the smart money would be on a prison sentence somewhere in the range of 12 to 24 months.  But I am really just guessing.

Some recent related posts:

April 24, 2008 in Celebrity sentencings | Permalink | Comments (21) | TrackBack

Why aren't the terrorist pardons during the Clinton Administration garnering more attention from the MSM?

Because I look at much of the news from a criminal justice perspective, I find the complaints that the MSM is biased against Senator Clinton to be somewhat comical given the "free pass" she has gotten on a lot of questionable criminal justice decisions made during the Clinton Administration.  The most obvious example of these realities comes from the attack on Senator Obama concerning connections to a member of the Weather Underground and toughness on terrorism.  If this is a serious campaign issue, the mainstream media ought to be closely re-examining at, and asking Senator Clinton hard questions about, the pardons given during the Clinton Administration to two Weather Underground members and to members of a group of Puerto Rican terrorists (FALN). 

Fortunately, some thoughtful bloggers are trying to make sure these pardon issues does not get lost in all the obsession over Senator Obama.  The blog Pardon Power, helpfully, has had an on-going series of effective posts on this front, including recently:

In addition, as detailed in these posts, a Mother Jones blog has been pursuing this story in recent days:

My sense from reading these posts (combined with knowing a bit about a lot of ugly stories surrounding President Bill Clinton's various pardon decisions) leads me to think there might by a lot more to discover if the media we to do some serious investigative journalism about these pardons and Senator Clinton's possible input.  Sadly, I do not get the sense, even with seemingly endless discussion of the Democratic race, that many in the MSM are seriously trying to develop new stories rather than just recycling the standard narratives.

April 24, 2008 in Campaign 2008 and sentencing issues | Permalink | Comments (22) | TrackBack

Assessing the constitutional war over the death penalty

Edward Lazarus has this new piece at FindLaw, titled "Five Decades of Fighting Over the Constitutionality of the Death Penalty: What Can We Learn from This Lengthy War?". Here is how it starts:

These days, when one speaks of a "war without end," the reference is usually to Iraq.  But in the legal world, the phrase also provides an apt description of the five-decade-long fight over the constitutionality of the death penalty.

Last week's decision in Baze v. Rees, in which the Court rejected a challenge to Kentucky's three-drug protocol for carrying out lethal injections, is just the latest painful yet inconclusive battle.  Like the Court's many dozens of death penalty decisions, issued over the last 45 years, the decision in Baze ensures only that the larger war will continue and that the Court's own internal culture will continue to be one of its casualties.

April 24, 2008 in Death Penalty Reforms | Permalink | Comments (1) | TrackBack

April 23, 2008

Pair of notable circuit reasonableness rulings

This afternoon brought two notable circuit reasonable rulings.  Notably, the Eleventh Circuit ruling reversing a below-guidelines sentence in a high-profile white-collar case, US v. Livesay, No. 06-11303 (11th Cir. Apr. 23, 2008) (available here) is published; the Fourth Circuit ruling affirming a below-guidelines sentence in a low-profile child porn case, US v. Smith, No. 06-4885 (4th Cir. Apr. 23, 2008) (available here) is unpublished.

April 23, 2008 in Booker in the Circuits | Permalink | Comments (2) | TrackBack

USSC has first cut of data on crack retroactivity

I am very pleased to report that the US Sentencing Commission has available here the first release of data on the retroactive application of the crack amendment on its website.  Here is how the data is described:

A set of tables presenting preliminary data on cases in which a motion for a reduced sentence was considered under 18 U.S.C. § 3582(c)(2).  These cases involve retroactive application of the crack cocaine amendment to the sentencing guidelines (Amendment 706, as amended by Amendment 711) which became effective on November 1, 2007 and which was made retroactive effective March 3, 2008.  The data represent cases received and coded by the Commission by April 14, 2008.

I have reason to believe that this data will be regularly updated, perhaps every month.  Such updates may be very important because, when looking through this data and hearing case-processing stories from different regions, it seems likely that different districts are taking different approaches to the order in which they address crack retroactivity cases.  Some districts, it seems, may be trying to process denials before grants, others vice versa, and still others using other methods for case triage.  Obviously, different case-processing plans could produce short-term (but perhaps not long-term) differences in district data that do not really represent substantive differences in how these crack retroactivity cases are being adjudicated.

UPDATE:  A local angle on this data is reported in this local news story, headlined "Western Va. district leads U.S. in resentencing crack cases."

April 23, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (0) | TrackBack

Why the government is eager to imprison Wesley Snipes

Forbes.com has this new piece, headlined Wesley Snipes And The TaxDef War," which spotlights why the government sees the Snipes case as one of the most important tax evasion cases in recent memory:

When Wesley Trent Snipes is sentenced Thursday in an Ocala, Fla., courtroom for willfully failing to file federal income tax returns, more than the 45-year-old star's freedom will be on the line. Also at risk will be the government's efforts to staunch the spread of what it recently re-branded "tax defiers."

Tax defiers — or "tax protesters" as they've traditionally been known — glom onto one kooky, discredited theory or another as to why the income tax is illegal or doesn't apply to them personally or doesn't cover their normal sources of income. (Example: Only foreign income, or only earnings of federal employees are taxable.) They typically file returns showing zero income or simply stop filing. Sometimes, they also put in claims for refunds of taxes they paid before their conversions, as Snipes did.

Just this month Nathan J. Hochman, the assistant attorney general in charge of the U.S. Department of Justice Tax Division, launched a new national initiative (TAXDEF for short) to bolster and better coordinate criminal and civil actions against tax defiers. Why now?  Hochman said in an interview he's worried that defiers are now spreading their ideas "virally" through the Web.

"They're not just based in some small cities and having meetings in motel conference rooms with a relatively small number of participants," he said. "They can promote their product across the United States literally overnight in a way that was physically impossible to do back in the mid 1990s." Criminal convictions are particularly important, Hochman observed, because word of them "spreads virally" too. "To lose one of these cases has significance as much as winning it does," he added.

While the government didn't exactly lose the Snipes case, it wasn't a pure win either.  On Feb. 1, a jury acquitted him of two felony charges related to false refund claims and three of six misdemeanor failure-to-file charges, finding him guilty of not filing his 1999, 2000 and 2001 returns. (Two Snipes co-defendants who sold him the tax protest ideas were convicted on felony charges.  At the trial, Snipes' lawyers argued he was a victim who took and believed the bad advice of others.)

Federal prosecutors now say Snipes should get the maximum three-year prison term allowed for his convictions, not only because of the amount of money involved — $14 million in gross unreported income in 1999, 2000 and 2001 alone — but also because of the problematic publicity generated by the split decision in his case.

Daniel R. Meachum, a Georgia attorney representing Snipes, told Forbes he'll argue that Snipes "does not need to be incarcerated. He is not some criminal that poses a threat to society." Meachum added that Snipes has made arrangements to pay the amount of back taxes his forensic accountants believe is owed. He declined to say how much that is, but acknowledged that it is not a number that has been agreed to by the government.

In their sentencing memo, prosecutors contend that the decision "has been portrayed in the mainstream media as a 'victory' for Snipes," and urge the judge to "send a message that Snipes did not 'beat the rap.' " To back up their claim, the prosecutors cite a New York Post headline: "Snipes is Now Tax-Free, Beats Heavy Rap and Walks With Wrist $lap." Even worse, the prosecutors assert, "Snipes' fellow tax defiers have been emboldened by his alleged 'victory' in this case." The defiers, the government says, consider the split decision "as a vindication of anti-tax theories and a 'win' that will attract additional converts into their movement."

Some related posts:

April 23, 2008 in Celebrity sentencings | Permalink | Comments (18) | TrackBack

Still more perspectives on the death penalty

These two items noted at How Appealing this morning provide perspective on how many different perspectives there can be on the American death penalty:

Comment away on whose perspective seems more compelling.

April 23, 2008 in Death Penalty Reforms | Permalink | Comments (9) | TrackBack

Examining America's affinity for incarceration

Adam Liptak has this new piece in the New York Times, headlined "Inmate Count in U.S. Dwarfs Other Nations’."  Here are excerpts:

The United States has less than 5 percent of the world’s population. But it has almost a quarter of the world’s prisoners.

Indeed, the United States leads the world in producing prisoners, a reflection of a relatively recent and now entirely distinctive American approach to crime and punishment. Americans are locked up for crimes — from writing bad checks to using drugs — that would rarely produce prison sentences in other countries.  And in particular they are kept incarcerated far longer than prisoners in other nations.

Criminologists and legal scholars in other industrialized nations say they are mystified and appalled by the number and length of American prison sentences....

There is little question that the high incarceration rate here has helped drive down crime, though there is debate about how much.

Criminologists and legal experts here and abroad point to a tangle of factors to explain America’s extraordinary incarceration rate: higher levels of violent crime, harsher sentencing laws, a legacy of racial turmoil, a special fervor in combating illegal drugs, the American temperament, and the lack of a social safety net. Even democracy plays a role, as judges — many of whom are elected, another American anomaly — yield to populist demands for tough justice.

Whatever the reason, the gap between American justice and that of the rest of the world is enormous and growing.....

Of course, sentencing policies within the United States are not monolithic, and national comparisons can be misleading. “Minnesota looks more like Sweden than like Texas,” said Mr. Mauer of the Sentencing Project.  (Sweden imprisons about 80 people per 100,000 of population; Minnesota, about 300; and Texas, almost 1,000. Maine has the lowest incarceration rate in the United States, at 273; and Louisiana the highest, at 1,138.)

Some related posts:

April 23, 2008 in Scope of Imprisonment | Permalink | Comments (7) | TrackBack

April 22, 2008

New paper on blended juve sentencing

Now appearing on SSRN is this interesting new piece providing an empircal perspective on a "new juvenile sentencing innovation, blended sentencing."  The piece is titled "Who Gets a Second Chance? An Investigation of Ohio's Blended Juvenile Sentence," and here is the abstract:

During the early 1990s, many state legislatures made sweeping changes in the dispositional and sentencing options available to juvenile courts, including the introduction of a new juvenile sentencing innovation, blended sentencing.  Blended sentencing emerged during a period of steadily increasing violent juvenile crime as a compromise between those who wanted to emphasize public safety, punishment, and accountability of juvenile offenders and those who wanted to maintain or strengthen the traditional juvenile justice system. The purpose of the present paper is to examine the practice of blended sentencing in Ohio.  Our objective is to identify the factors that influence the probability that juvenile offenders will be processed as conventional juvenile or as blended sentencing cases (referred to as a Serious Youthful Offender or SYO in Ohio) or transferred to the adult criminal justice system.

Using data from over 600 juvenile cases in Ohio, we propose a multinomial regression model to predict factors associated with the various dispositional case processing options. From these data we found, that, all other things being equal, non-white juvenile offenders were significantly less likely than white offenders to be SYOs as opposed to being transferred.  While some policy makers advocate that blended sentencing options as are currently in use be discontinued, we suggest that the most promising option to rationalize the use of blended sentencing and to avoid disparities in its use is to incorporate the principal of risk in its application.

April 22, 2008 in Offender Characteristics | Permalink | Comments (0) | TrackBack

Big efforts to reverse Second Circuit white-collar sentence reversal

Last month, as detailed in this post, the Second Circuit issued a long opinion in US v. Cutler, No. 05-2516 (2d Cir. Mar. 17, 2008) (available here), which reversed a pair of below-guideline sentences for white-collar offenders as procedurally and substantively unreasonable.  As documents in the series of filings set forth below, both defendants who had their below-guideline sentences reverse andthe New York Council of Defense Lawyers are urging the Second Circuit to rehear this case en banc.

April 22, 2008 in Booker in the Circuits | Permalink | Comments (0) | TrackBack

A counsel(-less) perspective on crack retroactivity

This news article, headlined "Failure emerges in call for shorter crack sentences: Many inmates are not given lawyers," reports on an interesting (and troublesomely disparate) aspect of the implementation of the USSC's new crack guidelines:

As federal courts begin deciding whether thousands of prisoners should receive shorter crack cocaine sentences, some judges are telling convicts that they won't get lawyers to help them argue for leniency.  As a result, some prisoners are being left to argue on their own against skilled prosecutors, raising questions about fairness in cases that already have been widely perceived as unjust.

The recalculations come after a 20-year debate over racial disparities in cocaine sentences.  Most crack cocaine defendants are black; most powder cocaine defendants are white and receive much less severe sentences.  In what's seen as a first step toward addressing the disparity, the U.S. Sentencing Commission issued new recommendations last year for lighter penalties.

But many of the 20,000 eligible prisoners say they're too poor to hire lawyers to ask for shorter sentences.  Many judges have appointed federal defenders to represent poor prisoners, saying it ensures the requests will be handled efficiently. Judges have the sole authority to appoint those attorneys.  Other judges, however, have said attorneys aren't needed for what should be a straightforward sentencing matter.

The right to an attorney after criminal indictment and during trial and sentencing is undisputed. But several federal appeals and district courts have concluded that judges generally don't have to appoint attorneys for convicted criminals who are seeking corrected sentences. Without lawyers, some defendants with legitimate requests will be overlooked, said federal defenders who are screening many of the crack cocaine cases. "We're being left to fend for ourselves," said Eyvonne Garrett, 40, a prisoner in Ft. Worth, Texas, who was denied an attorney and a shorter sentence. "Without an attorney, we don't have a voice."...

Jason Hawkins, an assistant federal defender in Dallas, said Garrett appeared to be making a legitimate argument but couldn't compete against experienced prosecutors.  "Not appointing counsel allows the government to run over people as if they're mere speed bumps in this process," he said. "A litigant with very little schooling is not going to be able to go up against a career prosecutor filing 24-page briefs."

UPDATE:  Steve Sady now has this long post on this topic at the Ninth Circuit Blog.  The post's heading provides a sense of his perspective: "Counsel Required For Fair And Efficient Implementation Of The Retroactive Crack Amendment."

April 22, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (7) | TrackBack

Federal prosecutors going hard after Wesley Snipes' tax "advisors"

This local article provides the latest news coming from the upcoming sentencing of Wesley Snipes and his co-defendants for tax evasion.  Here are some details:

Federal prosecutors are seeking a prison term of 10 years for Eddie Ray Kahn, one of two co-defendants of actor Wesley Snipes in a tax evasion scheme. In a sentencing memo filed Sunday, Robert E. O'Neill, U.S. Attorney for the Middle District of Florida, called on Senior U.S. District Judge William Terrell Hodges to sentence Eddie Ray Kahn to 10 years in prison. O'Neill also sought a sentence for a second co-defendant, Douglas Rosile, of between six and eight years.

On Feb. 1, an Ocala jury found Snipes guilty of three counts of willfully failing to file tax returns, but also acquitted him of felony conspiracy and tax fraud charges and three additional counts of failure to file.  The jury convicted Kahn and Rosile on the same felony charges.  All three men are scheduled to be sentenced at 9:30 a.m. Thursday.

O'Neill is seeking a sentence of three years in prison for Snipes — the maximum possible — and a fine of at least $5 million against the actor.  Snipes was a member of Kahn's Mount Dora-based American Rights Litigators.  Prosecutors have described ARL and its successor company, Guiding Light of God Ministries, as nothing more than illegal tax-evasion schemes....

In the sentencing memo for Kahn and Rosile, O'Neill described both men as "incorrigible tax offenders for whom significant prison sentences are warranted."  The memo indicates Kahn formed and sold memberships in ARL, even after he was convicted of willfully refusing to file his own returns and served a three-year prison term....

The memo notes that at least nine other members of ARL or Guiding Light of God Ministries have been convicted in separate criminal tax cases around the country, and that at least two more such trials are pending.  Because of Snipes' celebrity, the sentences imposed in the case could "increas(e) tax compliance on a national scale," the memo said. "This may be particularly true of the many customers of tax-defiance organizations, who cannot all be criminally prosecuted due to limited government resources."

Some recent related posts:

April 22, 2008 in Celebrity sentencings | Permalink | Comments (0) | TrackBack