December 6, 2008
Book suggestion for the clemency (and holiday shopping) season
While many defendants and their lawyers might be hoping for a clemency gift this holiday season, I can suggest a new book for any and everyone interested in reading some academic discussion of why the harshness of the legal system may often need to be leavened by acts of grace. This new book (pictured here) is titled "When Law Fails: Making Sense of Miscarriages of Justice."
The book is edited by Professors Charles Ogletree and Austin Sarat, and I have authored an essay for the book. My essay is titled "Extreme Punishment," and there I explain why I believe extreme punishments, and not just wrongful convictions, should be included in any accounting of miscarriages of justice. The book is being published by NYU Press and more information about the book (and ordering information) can be accessed at this link. Here is part of the website's description of the text:
The ten original essays in When Law Fails view wrongful convictions not as random mistakes but as organic outcomes of a misshaped larger system that is rife with faulty eyewitness identifications, false confessions, biased juries, and racial discrimination. Distinguished legal thinkers Charles J. Ogletree, Jr., and Austin Sarat have assembled a stellar group of contributors who try to make sense of justice gone wrong and to answer urgent questions.
Are miscarriages of justice systemic or symptomatic, or are they mostly idiosyncratic? What are the broader implications of justice gone awry for the ways we think about law? Are there ways of reconceptualizing legal missteps that are particularly useful or illuminating? These instructive essays both address the questions and point the way toward further discussion.
Final execution of 2008 conducted in South Carolina
As detailed in this local story, South Carolina conducted an execution yesterday. And this DPIC list of scheduled executions indicates that the next execution is not scheduled until January 14 in Texas. Consequently, it appears that we can complete any end-of-year execution accounting for 2008.
I believe the total number of executions in the United States this year was 37. As detailed by this DPIC yearly execution chart and this state-by-state execution list, the total number of executions in 2008 is the lowest since 1994, and Texas continues to be responsible for roughly half of all the executions nationwide. In fact, over the last two years, Texas has conducted roughly 56% of executions: the Lone Star state has carried out 44 of the 79 executions in the United States during 2007 and 2008.
Of course, the constitutional litigation over lethal injection protocols, including the Supreme Court's work in Baze which prevented any executions between October 2007 and April 2008, in part explains the low number of total executions in recent years. Nevertheless, given various predictions that there would be a rush of executions after Baze, the continuing decline in the number of executions annually remains noteworthy and significant.
As I detailed in this recent post, during the second term of the Clinton Administration, the nation averaged more than 85 executions each year. In surprising contrast, during the second term of the Bush Administration, the nation has averaged less than 50 executions each year. I am not sure what these numbers and current trends might mean as we move into a new Administration, but I am sure that one could use this data to surprise folks in all those (infamous?) Georgetown cocktail parties.
Some recent related posts:
- Notable second-term Presidential execution realities
- Busy pre-holiday weeks for executions
- As goes Maryland, so goes the nation on capital punishment?
- More evidence that the death penalty is dying a slow death on the front lines
- Any speculations on what this Election Day could mean for the death penalty?
December 5, 2008
Back to reasonableness jurisprudence after all the football fun
Though OJ and Plaxico make it dangerously easy to start thinking I run a sports blog, I will close this crazy week by reporting on a report of the most notable court decision of the week. Thanks to law.com, everyone can access here Mark Hamblett's report in the New York Law Journal about the important Cavera decision (discussed here yesterday). The NYLJ article, headlined "Second Circuit Approves Sentencing Bump for Urban Weapons Trafficking," starts this way:
The wide-ranging discretion in federal sentencing given to district judges by the U.S. Supreme Court allows a tougher prison term to a gun offender in New York City than in other parts of the country, the 2nd U.S. Circuit Court of Appeals said Thursday.
I have only had time to consume the majority opinion by (my former boss) Judge Guido Calabresi in Cavera. Though I am biased to like every opinion a former boss writes, I do not think it is my bias showing when I describe the his Cavera opinion as "Molto Bene." It is a great read and a must-read for everyone struggling with post-Booker sentencing and appellate review issues.
If instant polling matters in criminal justice administration, Plaxico may be in trouble
I was amazed this afternoon to discover from this news report that a research group has already run a quick poll to assess Americans' perceptions of New York Giants' wide receiver Plaxico Burress' arrest and charges of illegal gun possession after he accidentally shot himself. Here is the start of the news report:
A new national study among 300 football fans and non-fans revealed that the majority (75%) reported that Burress should be prosecuted to the fullest extent of the law for illegal gun possession, after viewing a news segment regarding the incident in a New York night club.
Notably, this study's question about the law apparently included the prospect of a mandatory 3.5 year sentencing term in state prison. Here is the question in the survey according to the news report:
"Do you think that Burress should be prosecuted to the full extent of the law? (If convicted, Burress would serve a mandatory minimum of 3 1/2 years in prison)."
Related posts on the Plaxico Burress case:
- NYC Mayor Bloomberg pushing for Plaxico Burress to get at least 3½ years in state prison, leading me to many questions
- "Main Threat to Burress Is a Sentencing Law"
- Starting to make the Second Amendment case for Plaxico Buress
An account of the failure to do a proper accounting of the OJ sentence
This new blog post, fittingly titled "O.J. prison bids open at six, climb to 33," provides an effective account of the mess that the media is making in the reporting of OJ Simpson's sentencing today in Nevada. Here is how the great post starts and ends:
Today's sentencing of O.J. Simpson in his Las Vegas robbery case produced utter confusion over his sentence and parole eligibility. With multiple counts, consecutive and concurrent terms, deadly-weapon enhancements, and parole factors, reporters were all over the place in trying to pin it down....
This is embarrassing. It's not clear yet whose fault it is, or who's right. I'm guessing that the judge did little to explain the sentencing realities in English, and reporters rushing to distill the details made a mash of them. Let's hope the reports clarify in the coming hours and days.
As of this writing (5:45pm), I can find these diverse headlines describing the OJ sentencing outcome:
- From the Associated Press, "OJ sentenced to as many as 33 years for robbery"
- From McClatchy News Bureau, "OJ Simpson gets 18 years"
- From the New York Daily News, "Canned juice: OJ Simpson headed to prison for up to 21 years"
- From the New York Times, "Simpson Sentenced to at Least 9 Years in Prison"
- From the Washington Post, "OJ Simpson Sentenced to 15 Years"
Got it, sports fans?
OJ Simpson gets 16-year prison sentence (but will be parole eligible in six) ... UPDATE: or did he get more??
Here's the latest news on OJ from this Bloomberg report:
O.J. Simpson, the former Buffalo Bills football player found not guilty 13 years ago of murdering his ex-wife and her friend, was sentenced to 16 years in prison for robbing two sports memorabilia dealers at gunpoint.
Nevada State Court Judge Jackie Glass pronounced sentence at a hearing today in Las Vegas, where the hotel holdup took place 14 months ago. Simpson, 61, was found guilty by a jury on Oct. 3 following a three-week trial. He had faced as much as life in prison for the crime....
Simpson was sentenced to 15 years for first degree kidnapping, the most serious count, and at least 12 additional months for use of a gun in the commission of the crime. He will remain in custody if he appeals, and may be eligible for parole in six years.
Candidly, this sentence feels a bit short to me in light of OJ's history of violence, but I am not fully conversant on either the applicable state law or all the pertinent sentencing facts. In addition, I suspect that Judge Glass considered OJ's age and the reality that any sentence much longer would be functionally close to a life sentence.
If anyone is knowledgeable about Nevada parole practices, I would love to hear speculations about how long OJ is really likely to serve given that his time behind bars could be only six year or a full decade longer based on Judge Glass's sentencing work today.
UPDATE: I cannot help but notice that google searching about OJ's sentencing today has driven more traffic to this site over the last 3 hours than I usually get in a full week. Seems like I ought to use this as an excuse to encourage voting for this blog in the crime category of the ABA Top 100 list.
Another UPDATE: I am intrigued any confused to discover that CNN's report right now on the OJ sentencing says "O.J. Simpson gets 15 years, could be out in 9." And yet this AP report is headlined, "O.J. sentenced to as many as 33 years for robbery." WTF??!!??!!
Leave it to OJ to make a bloody mess of sentencing!
"Putting Public Safety First"
The title of this post is the title of this new report from Pew Public Safety Performance Project. Here is the text of an e-mail I received today about this report:
A new policy brief from the Pew Public Safety Performance Project highlights community corrections strategies that can help policy makers and practitioners improve public safety and make better use of scarce public funds. Putting Public Safety First: 13 Strategies for Successful Supervision and Reentry is part of an ongoing series of policy briefs published by The Pew Center on the States. The 13 strategies outlined in this brief were the consensus findings from two meetings of national experts held over the past year by the Urban Institute, in collaboration with the National Institute of Corrections (NIC) and the JEHT Foundation.
This briefing is a companion piece to a longer report produced by the Urban Institute with the support of the JEHT Foundation, NIC and the Bureau of Justice Assistance. The report includes examples from the field and describes each of the 13 strategies in more detail....
We hope you can use this policy brief to help make the case for more cost-effective corrections in your work with policy makers and managers.
DC Circuit produces crisp split on ex post issues after Booker (finally!!)
In my view, one of the most interesting and amazingly underexamined post-Booker issue concerns whether or not the conversion of the guidelines to advisory status changed the settled pre-Booker determination that ex post facto doctrine precluded the application of new harsher guidelines to old crimes. Before today, the only circuit court to seriously engage this (arguably very important) issue was the Seventh Circuit, which held a couple of years ago held in US v. Demaree, 459 F.3d 791 (7th Cir. 2006), that Booker alters the ex post facto analysis.
Though not subject to lots of circuit analysis, Demaree was largely an outlier because most lower courts and most litigants and most probation offices proceeded after Booker as if the old ex postrules still applied. Indeed, the Justice Department's official position was that Demaree was wrongly decided and that the guidelines applicable at the time of the crime (not the latest guidelines) were to control at sentence. (Interestingly, I have heard reports that the Justice Department's position on this ex post facto issue has changed since the Supreme Court's ruling in Irizarry, but I am not sure if this is official policy.)
Now, thanks to a ruling today by the DC Circuit in US v. Turner, No. 07-3107 (DC Cir. Dec. 5, 2008) (available here), this fascinating issue is now the subject of a crisp and clear circuit split. In Turner, the majority opinion explains why it thinks the Seventh Circuit's work in Demaree is washed up in light of controlling Supreme Court law:
The proper approach is therefore to conduct an “as applied” constitutional analysis, see Miller, 482 U.S. at 435, not the sort of facial analysis conducted in Demaree.... Turner did not have to show definitively that he would have received a lesser sentence had the district court used the 2000 Guidelines. See Miller, 482 U.S. at 432. It is enough that using the 2006 Guidelines created a substantial risk that Turner’s sentence was more severe, thus resulting in a violation of the Ex Post Facto Clause. See Miller, 482 U.S. at 433.
I somewhat doubt that the Justice Department will be inclined to seek cert in this case, so Turnermay not become the case in which the Supreme Court has to grapple with these issues. But I am excited to see my favorite post-Booker legal conundrum getting some attention, and I suspect it will be only a matter of time before SCOTUS will have to take up this issue.
Should plea agreements be available to the public?
I just noticed via SSRN this new student note by David Snyder in the Fordham Urban Law Journal. The notes is titled "Nonparty Remote Electronic Access to Plea Agreements in the Second Circuit," and here is the abstract:
The advent of electronic access to case files gives rise to security concerns previously unrealized in the era of paper records. The emergence of a "cottage industry" of websites that republishes court filings and plea agreements online for the purposes of witness intimidation, retaliation, and harassment poses a grave risk of harm to cooperating witnesses and defendants. The benefits associated with the remote electronic availability and dissemination of judicial documents may thus come at a considerable cost.
This Note describes the options that district courts within the Second Circuit could implement sua sponte to mitigate these concerns. For example, courts may adopt a local rule or protocol that curtails electronic access to plea agreements in response to the risks effectuated by PACER. This medium-based approach suffers from a number of practical and legal deficiencies, including the violation of Federal Rule of Criminal Procedure 49.1, which does not permit categorical protective orders. Alternatively, rather than modifying access rights depending upon the medium through which access is sought, courts may seek to prohibit all access to sensitive filings through categorical sealing measures. This approach is unworkable in the Second Circuit, which requires case-by-case determinations with respect to motions to seal. Finally, courts may choose to reconsider which documents ought to be maintained in the public record. This Note concludes that the last option is preferable due to its ability to withstand scrutiny under both the access doctrine and Federal Rule of Criminal Procedure 49.1.
The Note also includes a comprehensive survey of the electronic access policies of the federal district courts.
Some deep retributivist thoughts for punishment theories
With so much real-world news of note, I have not done a post on punishment theory in far too long. Fortunately, Michael Cahill is raising some deep thoughts on this topic while guest-blogging over at Prawfs. Anyone eager to do some theory thinking should be sure to check out these posts:
December 4, 2008
"How much time will OJ the killer get? thanks."
The title of this post is the full text of an e-mail I received this afternoon today, from some calling himself "anonymous tip" and excited about tomorrow's scheduled state sentencing of OJ Simpson in Nevada. Any thoughts dear readers?
For some background, consider this AP article, headlined "OJ judge known for stern lectures, stiff sentences." Or check out this ESPN piece, headlined "OJ Simpson sentence likely to be at least 18 years." Or consider this article, which notes that the Goldman family is going to be in the audience:
The Goldman family plans to attend Friday's hearing but doesn't meet the state statutes to give an impact statement in court. In a phone interview, Ron Goldman's sister, Kim, said the family has waited a long time to see O.J. behind bars. "I hope he leads a miserable existence and I hope it's for a very long time. The less time he spends out on the street lessens the anxiety that we have."
Geez with OJ and Plaxico making so much sentencing news, I might soon be able to call myself a sports journalist just from doing this blog.
Some related posts on OJ's sentencing:
Plaxico as teaching tool: omission liability, complicity, prosecutorial discretion . . .
As all my students know too well, I love high-profile criminal cases because they provide great teaching moments (and perhaps great exam hypotheticals). And, thanks to more legal developments today, the Plaxico Burress case just keeps on giving.
First, consider this new story from Newsday, headlined "Doctor who treated Plaxico suspended, facing charges." Here are the highlights:
If the doctor at the center of the Plaxico Burress nightclub shooting is prosecuted for not reporting the gunshot wound to police, she will be just the fourth person charged with such an offense since 2000 in New York State, according to authorities.
Dr. Josyann Abisaab has emerged as a sidebar to the case in which Burress accidentally shot himself in the right thigh inside the midtown nightclub Latin Quarter early Saturday morning.... Abisaab, 44, has privileges at New York Presbyterian Hospital/Weill Cornell Medical Center, where, according to police sources, she treated Burress early Saturday.
Abisaab, however, did not call police, as state law requires, and could be charged with a Class A misdemeanor and spend a year in jail. Abisaab on Monday was suspended by the hospital.
Second, check out this new FoxSports piece, headlined "Report: Pierce will testify before grand jury." Here is how it starts:
Embattled Giants linebacker Antonio Pierce will play ball — with prosecutors. The linebacker will cooperate and testify before a Manhattan grand jury about how teammate Plaxico Burress clumsily shot himself in the leg at a nightclub, The New York Post has learned.
Pierce's testimony should guarantee an indictment against Super Bowl hero Burress for felony weapon possession — but at the same time, give Pierce a pass on charges of hiding the wide receiver's .40-caliber Glock pistol after the shooting.
Who knew that Plaxico's self-inflicted wound on Friday would end up being an early holiday present for law professors like me eager to come up with good new ideas when writing my final exam?
Related posts on the Plaxico Burress case:
- NYC Mayor Bloomberg pushing for Plaxico Burress to get at least 3½ years in state prison, leading me to many questions
- "Main Threat to Burress Is a Sentencing Law"
- Starting to make the Second Amendment case for Plaxico Buress
En banc Second Circuit hands down Cavera, the "local conditions" sentencing case
Thanks to a helpful reader, I just discovered that the Second Circuit today handed down its en banc opinion in US v. Cavera, No. 05-4591 (2d Cir. Dec. 4, 2008) (available here). Regular readers may recall this case, which has been confounding the Second Circuit for quite some time and was heard en banc way back in March.
The case raises the question of whether a federal judge can reasonably justify an above-guideline sentence based on the local conditions (basics blogged here). And because it involves a gun crime sentencing in the New York area, the opinion might intrigue Mayor Bloomberg and Plaxico Burress and a host of others beyond just hard-core federal sentencing nuts.
The full decision runs 77 pages (including what appear to be a total of five separate opinions), and I will surely need a lot of time to consume its grandeur and assess what it means for sentencing in the Second Circuit and elsewhere. But I am certain this is today's must read for everyone working in the federal sentencing vineyards.
Pardons, politics, race and justice: why Holder should come out swinging
President-elect Obama's selection of Eric Holder to be the next U.S. Attorney General is generating more buzz this morning, with this new piece at Politico, headlined "Holder pardon makes Dems squirm," and this new editorial at the Wall Street Journal, titled "Eric Holder's Politics: His years at Clinton Justice don't inspire confidence." Both pieces effectively highlight how the ugly pardons of the Clinton era provide a basis for questioning Holder's ability to be unduly influenced by political considerations.
There is, of course, some irony in folks attacking Holder primarily for political reasons by questioning if he is too much influenced by politics reasons. But I am never troubled by a political system acting politically as long as there is transparency. What is starting to trouble me, however, is the prospect that the public debate over our nation's first African-American AG nominee is going to focus on a few dumb decisions by his boss roughly a decade ago.
As I noted in this prior post, the import and impact of racial issues in all aspects of the work of the federal Justice Department (both criminal and civil) should not be overlooked. For this reason and many others, the potential appointment of the first African-American Attorney General is noteworthy and perhaps quite consequential. Though lots of (disproportionately white and rich) Senators apparently want to talk with Holder about pardons, war on terror and other political issues, I would like to see Holder come out swinging in the confirmation debate by raising race and justice issues right from the start.
Notably, an effort to put Senators back on their heels during a confirmation hearing by speaking about racial issues worked quite well for Justice Clarence Thomas. It would be quite interesting if Holder had the guts to take a page from the Thomas playbook.
Some recent Holder as AG posts:
- President-Elect Obama officially names Eric Holder as his AG pick
- Lots of buzzing around Eric Holder as the next US Attorney General
- Three late afternoon thoughts on the Holder pick: race, tough and tech
- Interesting reflections on Obama appointees from drug policy reformers
December 3, 2008
Starting to make the Second Amendment case for Plaxico Buress
I am very pleased to discover gun rights guru David Kopel starting to make a Heller-based Second Amendment argument for Plaxico Burress in this Wall Street Journal opinion piece. The piece is titled "Free Plaxico Burress: New York City's gun law is unconstitutional," and here are snippets:
New York Giants star receiver Plaxico Burress is facing a mandatory 3½ years in prison and the end of his football career. His crime? Not having a license, which New York City never would have issued him, for the exercise of his constitutional right to bear arms....
Mr. Burress's behavior was bad. However, Mr. Burress is not facing prosecution for carelessness, but simply for carrying a weapon. This is unjust and perhaps unconstitutional....
The Second Amendment might not require New Jersey or New York City to issue as liberally as Connecticut does. But with a population of several million and only a few thousand (consisting mainly of politicians, retired police and celebrities) able to get permits, New York City's licensing process is almost certainly unconstitutional on a number of grounds, including sheer arbitrariness.
Some commentators contend that Plaxico Burress should have hired bodyguards, instead of carrying a gun himself. Mr. Burress might now agree. But people who aren't as wealthy as he is also deserve to be safe, and they don't have the money for bodyguards. New York City needs to regularize its carry permit system so that law-abiding people can protect themselves, especially if their circumstances (such as being a witness to a gang crime) place them at heightened risk.
The Burress case also shows why mandatory sentences are a bad idea. He was careless but had no malign intent. Legislators and mayors like to appear tough by pushing through such draconian laws. Yet the victims are people like Mr. Burress whose conduct may have been improper, but who do not deserve the same sentences meted out to robbers and burglars.
Related posts on the Plaxico Burress case:
- NYC Mayor Bloomberg pushing for Plaxico Burress to get at least 3½ years in state prison, leading me to many questions
- "Main Threat to Burress Is a Sentencing Law"
Notable terrorism resentencing results in same sentence
As detailed in reports from the AP and from the Seattle Post-Intelligencer, the so-called "millenium bomber" has been resentenced to the same 22-year prison term he was given before the original sentence had been reversed by the Ninth Circuit. Here are the notable basics:
A federal judge in Seattle rejected a life sentence Wednesday for Ahmed Ressam, whose terrorist plot to bomb Los Angeles International Airport during the millennium holiday rush was thwarted in 1999 by an alert customs officer in Port Angeles.
Federal prosecutors sought life because Ressam has stopped cooperating with investigators. But U.S. District Judge John Coughenour reinstated a 22-year sentence, saying he could not ignore Ressam's cooperation in the first years of his incarceration.
An appeals court sent the case back to Coughenour for resentencing because of his failure in 2005 to clearly enumerate how he had calculated Ressam's sentence under federal guidelines.
In a courthouse surrounded by deputy U.S. marshals wearing body armor and carrying M-4 assault rifles, Ressam -- who acted as his own attorney -- was defiant. Ressam retracted all previous statements made at his trial and those used against another alleged terrorist. He said those things when he was mentally ill in the wake of his traumatic arrest, imprisonment and trial, Ressam told the court. Ressam invited the judge to sentence him to life.
Should we end a failed expensive war (the war or drugs) during these hard economic times?
I have been thinking a lot lately about how the tough economic times are likely to impact crime and punishment realities. I fear that crime rates will inevitably rise because of rising unemployment and reductions in social services. But punishment rates, at least in terms of incarceration rates, cannot possibly also rise because most states are already unable to pay for all their tough-on-crime punishment practices.
Against this backdrop and all the talk of the Great Depression, it is notable that this Friday we celebrate the 75th anniversary of the 21st Amendment repealing alcohol prohibition. (See, e.g., great BLT post here). It is especially notable because a group of cops, judges and prosecutors who want to legalize drugs issued a report this week saying that ending the "war on drugs" will boost our economy by at least $76 billion a year and will put dangerous gangs and cartels out of business.
The main group behind all this call for a new repeal of old drug prohibitions is Law Enforcement Against Prohibition. Here's what's up on their site today:
December is the 75th anniversary of when America's leaders had the good sense to end alcohol prohibition. Today, we have another ineffective, harmful and expensive prohibition, the "war on drugs." LEAP has made it easy for you to take action and let your legislators know that we can't afford prohibition in these tough economic times. Visit www.WeCanDoItAgain.net for more information.
Another notable CVRA mandamus petition to watch
I am pleased to see from this post at The Volokh Conspiracy that Professor Paul Cassell is continuing his important efforts to get district and circuit courts to give serious effect to the federal Crime Victims' Rights Act. Here is a snippet of Paul's account of his latest CVRA doings:
Yesterday I filed a mandamus petition in the Eleventh Circuit, asking that borrowers who were overcharged on loans be recognized as "crime victims" under the federal Crime Victims' Rights Act. The petition seeks restitution and other rights in the criminal justice process. The petition challenges a ruling by U.S. District Judge Elizabeth A. Kovachevich of the Middle District of Florida on November 21, 2008, that borrowers on loans from Coast Bank were not “crime victims” of Phillip Coon’s criminal conspiracy because they were not specifically listed in the criminal charges against him. The petition contends that, because the borrowers suffered financial losses from the fraud, they are “victims” entitled to the protections of the federal Crime Victim’s Rights Act. The petition could produce the first appellate court decision deciding who is a “victim” under the law. The petition has important implications for the protection of victims’ rights in the prosecution of federal financial crimes.
The lengthy petition is available at this link. Paul indicates that his "petition asks for a decision from the Eleventh Circuit by December 16, 2008." I find this peculiar, because the CVRA (18 U.S.C. 3771) expressly provides that a circuit court receiving such a mandamus petition "shall take up and decide such application forthwith within 72 hours after the petition has been filed." 18 U.S.C. 3771(d)(3).
I do not see any basis in the CVRA or know of any authority for extending this statutory timeline for a circuit decision even if the petitioner is willing to wait longer for a decision. By my reading, the Eleventh Circuit appears to be statutorily obliged to rule on this mandamus petition before the end of this week.
Of course, this statutory requirement might be violated by the Eleventh Circuit (as it was in the leading CVRA case, the Kenna case from the Ninth Circuit). But I find it curious and somewhat ironic that Paul's effort to seek rights under the CVRA apparently invites the Eleventh Circuit to violate the terms of the CVRA.
"Main Threat to Burress Is a Sentencing Law"
Today's must-read is this terrific piece by Michael Schmidt in the New York Times that provides some of the back story on the mandatory minimum sentencing law that may make it very hard for Plaxico Burress to avoid jail time in the state pen for his (seemingly minor?) gun possession crime. Here are snippets from a piece that all sentencing fans should read in full:
[P]erhaps more important than the question of whether Burress ever plays for the Giants again is the question of whether his future will include time in prison. [L]egislation ... signed into law in November 2006 by then-Governor George E. Pataki ... eliminated a provision that gave judges the option of not imposing jail time on people found guilty of illegally possessing a loaded firearm.
Instead, the three-and-a-half year minimum sentence was established. As a result, legal experts said Tuesday, Burress may have little wiggle room as he tries to avoid prison time. “Even if he pleads down, he can only plead down one count and he would still face a minimum of two years in prison,” said Robert C. Gottlieb, a New York-based criminal defense lawyer and a former prosecutor in the Manhattan district attorney’s office. “The other wiggle room is that he could try and prevent the district attorney’s office from charging him with this crime and charge him with a lesser crime.”
In fact, John M. Caher, a spokesman for the New York State Division of Criminal Justice Services, said that fewer than 10 percent of the people in New York City who were charged with criminal possession of a weapon — the charge Burress is facing — were convicted of that charge and that many ended up being convicted of a lesser charge.
However, Gottlieb noted that the public attention made it unlikely that prosecutors would accept a lesser charge. Another option, some experts said, would be for Burress to provide authorities with information that would lead them to prosecute others, although that seems unlikely considering the narrow circumstances of his case.
As [Burress's lawyer Benjamin] Brafman begins to plot his legal strategy, he cannot help but think back to that argument [he had with an NYC lawyer] nearly two years ago. “The point I made then, and I will continue to make, is that laws involving criminal justice that do not have exceptions for extraordinary circumstances are inappropriate in a democracy where we pride ourselves on fair play,” Brafman said in a telephone interview Tuesday....
On Monday, Bloomberg drew attention to the issue when he sharply criticized Burress and said that the authorities should prosecute him to the fullest extent of the law. Brafman said that Bloomberg’s comments damaged Burress’s legal standing. “When you have the mayor of New York demanding the maximum sentence in a case which has just begun and nobody has been convicted, it certainly doesn’t help,” Brafman said. “Mr. Bloomberg may have cost my client his job and cost him an ability to get a fair trial.”
This article confirms some of what I expressed in my first post on the Burress case — namely that Mayor Bloomberg's comments on Monday may ensure that Plaxico may soon become a poster-child and a great test case for groups like Families Against Mandatory Minimums that have long argued about the unfairness of mandatory minimum sentencing terms (especially for first offenders).
The only important point missing from the NYTimes article (and from Brafman early efforts to develop pro-Burress public sentiments) is the Heller Second Amendment issue I often champion. As I noted in my prior post, if the Second Amendment is applied to the states after Heller (which seems very likely) and if Burress says he carries a gun for personal self-defense (which seems very plausible), anyone with a serious commitment to the right of persons to possess a gun for self-defense (like those at the NRA) should be very troubled by the notion that Burress is facing years in prison for merely possessing a gun.
What's the early line on the upcoming OJ sentencing?
According to this AP article, which is headlined "Lawyer: OJ, co-defendant face 18 years," it looks like Orenthal James Simpson is looking at a sentence of at least six years for his state convictions. Here are the sentencing basics from the article:
O.J. Simpson and a co-defendant face a recommended 18 years in prison in the gunpoint robbery and kidnapping of two sports memorabilia dealers, according to defense briefs and Simpson's lawyer. Defense lawyers for the former football star and co-defendant Clarence "C.J" Stewart filed briefs Tuesday asking Clark County District Court Judge Jackie Glass for minimum prison terms when she sentences the two men Friday.
"If the judge chooses minimum sentences but runs them consecutively it would total 18 years," Simpson lawyer Gabriel Grasso said after filing an 11-page defense brief in response to a state Parole and Probation Division sentencing recommendation. "We would like the judge to take our recommendation to heart and sentence (Simpson) to the minimum, six years," Grasso said.
Glass is not bound by the report and could sentence each of the men to the maximum term of life in prison. Stewart's lawyer, Brent Bryson, also submitted a brief Tuesday asking the judge to disregard the state's sentencing recommendation. "Stewart submits that given his minimal participation in the events ... as well as his lack of any prior criminal convictions, that (he) be sentenced to the minimum," Stewart's five-page brief said....
A jury on Oct. 3 convicted Simpson and Stewart of all 12 charges against them in the Sept. 13, 2007, confrontation with the two sports memorabilia dealers at a Las Vegas casino hotel room.
Simpson maintained he went to the room to retrieve personal items, family photos and sports mementos that had been stolen from him years earlier. "Justice requires this court impose the very minimum sentence possible in this case," Grasso wrote in Simpson's brief. "Simpson was convicted of crimes that revolve around his belief that the property he was recovering was his and at some point was taken from him."...
Prosecutors did not submit a sentencing memorandum to the court. Dan Kulin, spokesman for District Attorney David Roger, said prosecutors in Las Vegas usually rely on parole and probation findings.
As I have noted in prior posts, it would seem to be entirely constitutional for Judge Jackie Glass to expressly determine that OJ Simpson is double murderer and to sentencing him to a longer term based on that finding despite his high-profile acquittals years ago.
Indeed, given that a civil jury formally concluded that OJ was responsible for two wrongful deaths, I think the prosecution here could make a very strong argument that OJ should be considered a repeat offender. I do not know Nevada sentencing law at all, so I suppose it is possible that there are some state laws and rulings that might limit Judge Glass's sentencing authority. But, to repeat, current federal constitutional jurisprudence would seem to make largely irrelevant OJ's prior acquittals at this new sentencing.
I would think the recommended 18 years in prison is a sensible over/under for anyone wanting to make book on this sentencing outcome. If that's the line, I'd probably take the over, but maybe that's just because I have never been a Bills fan.
Some related posts on OJ's sentencing and acquitted conduct enhancements:
Another reminder of the crime dog that did not bark in the 2008 election season
Since one senate race was only decided last night and another one remains unresolved, this commentary I just noted on SSRN still is timely. The piece is by Professor Stephen Saltzburg from the Summer 2008 issue of the ABA's Criminal Justice magaine, and it is titled "Where is Criminal Justice in this Presidential Year?". Here is the abstract:
This article notes that throughout the presidential campaigns there has been little emphasis on criminal justice and few serious proposals by candidates for changing or improving the way in which the federal government enforces criminal law. There has been little discussion about the respective roles that the federal government and the states should play in law enforcement. The author calls for the next president to convene an inclusive national congress on criminal justice. He encourages the president to bring together prosecutors, defense counsel, judges, legislators, law enforcement, correctional officials, probation and parole officers, academics, victims advocacy groups, other public interest organizations, and ordinary citizens to reexamine and establish our criminal justice priorities, to propose reforms that will identify more clearly those whose criminal acts warrant long prison sentences and those who are better served by treatment.
Lots of notable sentencing action in the circuit courts
Though sentencing action and issues outside of court have captured a lot of my attention lately — on topics ranging from clemency chutzpah to foolish footballers to paralyzed porn pursuers — there has been plenty of noteworthy sentencing action in the federal circuit courts of late. Helpfully, How Appealing has assembled links to both the rulings and media coverage of two of the biggest circuit decisions recently that should be of greatest interest to sentencing fans.
Specifically, as detailed here, the Second Circuit yesterday issued a notable sentencing opinion concerning guideline issues in a high-profile terrorism case. And, as detailed here, the Tenth Circuit yesterday issued a notable sentencing opinion concerning the appellate rights of victims under the federal Crime Victims Rights Act.
December 2, 2008
Lots for sentencing fans in latest issue of OSJCL
I am pleased to report that the Fall 2008 issue of the Ohio State Journal of Criminal Law is now available on-line here, and it includes a number of terrific pieces. All the articles and many of the commentaries ought to be of particular interest to sentencing fans.
The Fall 2008 OSJCLissue includes two great symposia shepherded by two great guest editors: Professor Wayne Logan assembled a set of articles on "Sex Offender Law and Policy," and Professor Jeffrey Fagan assembled a set of articles "Legitimacy and Criminal Justice."
In addition, this issue includes commentaries on an array of topics and a "Term Paper" by Professor Heidi Hurd, titled "Death to Rapists: A Comment on Kennedy v. Louisiana."
Be sure to check out the new OSJCL issue and also all the other great OSJCL content available in full text at this on-line archive.
Juror says publicly that she wanted MySpace bullying defendant sent to prison
Late last week, I asked in this post, "What sentence would you impose on Lori Drew, the MySpace bullying defendant?". Today, thanks to this article from the St. Louis Post-Dispatch, we learn that at least some of the juror in the case hope to see Drew in prison garb:
The forewoman of the jury that convicted Lori Drew of misdemeanors for cyber bullying said Monday that a majority of the panel favored a felony conspiracy verdict that could have sent her to prison.
Most jurors believed a felony conviction would send a message that Internet sites should be better regulated for fraud, the forewoman, Valentina Kunasz, said in a telephone interview. But four jurors would not be convinced, Kunasz said, blocking a felony verdict.
"I would have liked to see this lady go to jail to change the way Internet sites are run," said Kunasz, 25, a former hairdresser who lives in Los Angeles County.
Last week in Los Angeles, the jury convicted Drew, 49, of O'Fallon, Mo., on three misdemeanor charges of illegally accessing a computer. It found her not guilty of more serious felony versions of those charges, and deadlocked on the felony count of conspiracy.
If the convictions hold, Drew likely faces little more than probation. U.S. District Judge George Wu has not yet ruled on motions asking that he use his power to acquit Drew of all charges despite the jury verdict....
Kunasz described herself as among eight jurors who believed that Drew acted maliciously. "I didn't think she intended to have this girl kill herself," Kunasz said. "But she knew she was suicidal, depressed and taking medicines, and still continued to pursue this act."
It didn't matter much whether Drew typed the messages to Megan, or whether it was Sarah or Grills, Kunasz said. Drew didn't stop it, and that was malicious. "What is a 47-year-old woman doing egging on her child and employee to do this?" the juror asked.
Four holdouts on the 12-member jury believed that Drew set up the MySpace page to learn what Megan was saying about Drew's daughter, not to harm her, Kunasz said. "I wish that those four other jurors would have had a different opinion," she said. "But they thought what they thought, and they were entitled to that." None of the other jurors could be reached for comment.
This article and the statements from the jury forewoman are especially interesting (and somewhat peculiar) given that Drew still faces a prison term of up to 3 years for her three misdemeanor convictions. Regular readers may recall another high-profile defendant (Wesley Snipes) who got 3 years in prison for three federal misdemeanor convictions even after he was acquitted of more serious federal tax evasion charges.
I sense from this article that the jurors (or at least the forewoman) thought that a felony conviction would essentially ensure some prison time for Drew, and also thought misdemeanor convictions would essentially preclude a prison term. Of course, this is not true: Drew could still have gotten a sentence of probation even if convicted on all counts, and she might still get sentenced to prison despite her acquittal on felony counts. But it is not surprising that jurors misunderstand federal sentencing realities given that they typically are not allowed to be informed of the possible sentencing consequences of their decisions.
Crime victims and technocorrections
This new article from my local paper, headlined "Ohio upgrades criminal tracking system for victims," shines an effective spotlight on how concerns for crime victims will further propel the move toward technocorrections. Here are the basics:
Crime victims will be able to find out when an inmate is released with the help of upcoming changes to Ohio's criminal tracking system. State officials say a $100,000 grant from the U.S. Department of Justice will allow Ohio to upgrade its current tracking system by 2010.
"It will empower victims and allow them more control over their own situation and safety," said Matt Hellman, administrator of the Ohio attorney general's office of victim services. "If they need to, they can make plans for their own safety and for the safety of friends and family."
Victims already can check the status of current inmates still in prison through the Ohio Department of Rehabilitation and Correction's internal tracking system and by phone and e-mail through a national automated information and notification network. That system provides information on changes to an inmate's status, including releases, transfers, escapes and deaths.
The enhancements to the system - known as Victim Information and Notification Everyday, or VINE - will allow victims to follow offenders' movements after they're released on parole or probation. The system also tracks inmates who are moved to the state's intensive prison program, which puts prisoners through specialized education and treatment, allowing them to possibly earn earlier release dates....
Ohio was one of the first states to offer the system, implementing it in 1998, according to the state attorney general's office. State officials say the system was used nearly 1 million times in 2007 to check on the custody status of Ohio inmates or receive notification of changes in that status. The program is a free and anonymous computer-based service available to anyone 24 hours a day.
More proof politicians are very compassionate toward criminals ... who are fellow politicians
I am hoping readers might help me come up with a catchy word or phrase to describe the all-too-common phenomenon of "tough-on-crime" politicians becoming amazingly sympathetic to convicted felons who are fellow politicians. I would have liked to had such a term for President Bush, who showed his soft side when he commuted the sentence of his pal Scooter Libby, despite the fact that he has not shown any similar compassion toward thousands of other first offenders sentenced to prison for crimes arguably less serious than Libby's (such as Victor Rita and others noted in this post). And such a term now is needed to describe a number of prominent Senators who are seeking compassion for other prominent federal offenders.
First, consider the compassion now being expressed by Senator Orrin Hatch and other Republicans in this new Politico piece asking "Will Bush pardon Stevens?." Here are some particulars:
Sen. Ted Stevens (R-Alaska) hasn’t yet joined the gallery of notorious felons, small-time crooks and aggrieved innocents seeking pardons from President Bush, but it appears he’ll have the support of some of his soon-to-be-former colleagues if he does.
“He has served this country for over 50 years,” said Sen. Orrin G. Hatch (R-Utah), a widely respected member of the Judiciary Committee. “I think most anybody would probably say, ‘Yeah, he should be [pardoned].’ I think most anybody would say it’s fair to say that.” On Oct. 27, a District of Columbia jury convicted Stevens on seven counts of failing to report more than $250,000 in gifts and home renovations he received from 1999 to 2006. Stevens, 85, faces up to 35 years in prison if the conviction stands....
For Sen. Lisa Murkowski (R-Alaska), the case for a pardon for Stevens has already been laid out. It’s all right there in a letter that Stevens’ lawyers sent to Attorney General Michael Mukasey — one in which they laid out their allegations of prosecutorial misconduct before and during his trial. “I look at what has been outlined in this letter to the attorney general, and I think if President Bush were to consider it, I think there would clearly be grounds based on what I have seen to go ahead and do so,” Murkowski said of a pardon.
Murkowski emphasized that the decision to pardon is Bush’s alone but that there “were clear instances in that trial where the prosecutors clearly overreached, and as a consequence of that overreaching, you have a verdict that comes down, and now a good man — a man who has served his state and his country — is now looking to that forced retirement.”
The letter from Stevens’ attorneys to Mukasey doesn’t specifically request a pardon but rather seeks a Justice Department investigation into its prosecutors’ conduct.
Informed readers should see a special irony concerning Senator Murkowski's suggestion that prosecutorial "overreaching" provides clear grounds for a pardon. A concern about overzealous federal prosecutors was, of course, the rationale given by President Clinton for his notorious pardon of Marc Rich. Ah well, I suppose I am just naive to expect politicians to be even a little bit principled in this arena.
Second, lest anyone think only Republicans deserve a clemency chutzpa award, consider the public statements of Democratic Senator Dick Durbin urging commutation of the prison sentence of former Illinois Governor George Ryan. Here are details from this Chicago Tribune report:
Despite an acknowledged firestorm of criticism, Democratic Sen. Dick Durbin said Monday that he was asking President George W. Bush to commute the federal corruption sentence of former Republican Gov. George Ryan to time served as an act of compassion and mercy.
"For those who would argue that a commutation makes light of his crimes, it is clear that he has already paid a significant price and will continue to do so as long as he lives," Durbin wrote of Ryan in a letter to Bush. "Justice is a sword that should be tempered with compassion. Further imprisonment will not, in my opinion, serve the ends of justice."
The request by Durbin, the second-highest ranking Democrat in Senate leadership, met with support from Ryan's attorney, former Gov. Jim Thompson, but was assailed by the head of Ryan's prosecution team and some of the jurors who convicted him. "George Ryan's crimes were serious breaches of the public trust," said former Assistant U.S. Atty. Patrick Collins, who led the Ryan investigation. Collins questioned why Ryan was being "humanized" by supporters of a commutation over other inmates, including elderly prisoners or single parents.
Denise Peterson of Hawthorn Woods, who served on the federal jury that convicted Ryan in 2006 on federal fraud, racketeering and related charges, said a commutation would send the wrong message to politicians looking to abuse the public trust. "I think that once again politicians are getting special treatment because of who they are, and that's not how it should be," Peterson said. "I had a front-row seat, and I understand that he's guilty and he's not sorry. He should stay in jail."
Durbin said public officials should be held to a higher standard of public trust. But he said that while Ryan's case may be of a high profile, it was little different from the thousands of people whom his office has tried to help because they feel "they have not been treated fairly by our government."
"I will speak out for justice in each and every case," Durbin said. "Because George Ryan happened to be an elected official does not mean that I would ignore the plea of his wife and family."
Funny, I must have missed all the media reports of Senator Durbin publicly "speak[ing] out for justice in each and every case" in which a not-so-prominent federal defendant (like Victor Rita, for example) has "already paid a significant price" for crimes less serious than those committed by George Ryan.
UPDATE: For more packground on pardon issues and debate, ABC News has this new piece. Among other interesting parts of the ABC piece is this bit of empirics:
The president, who has a nearly unfettered constitutional power to pardon, has used it sparingly. He has granted fewer than 200 of 10,000 petitions filed in the past eight years.
Candidly, I would have guessed that the President would get more than 10,000 clemency petitions over two terms. Also, given that the Supreme Court gets nearly 10,000 petitions for certiorari each year and grants less than 100, this bit of data allows me to now say that a modern clemency petition has twice the change of success as a modern cert petition.
Privacy lawsuit brought against sex offender background checks in schools
This summer I blogged here about a notable new technology that some school systems have started using to try to prevent sex offenders from getting into schools. Now I see from this local Texas story, headlined "School safety check draws lawsuit: Couple objects to device that spots sex offenders by scanning licenses," that this new form of techno-security is now the subject of a lawsuit. Here are the specifics:
A background check system used by many Texas schools to spot visitors who are sex offenders is being challenged by two parents who say the process violates their privacy and other rights. Yvonne and Larry Meadows are suing the Lake Travis school district over a computer system that checks visitors against a sex offender database by scanning their driver's license. Visitors who don't consent can be turned away.
The federal lawsuit filed in November is believed to be among the first legal challenges to the policy in Texas. Houston-based Raptor Systems, which performs background checks for Lake Travis and 5,000 other schools nationwide, said it was unaware of similar lawsuits.
The Meadowses say the computerized checks violate their constitutional rights, including freedom to associate with their children at school and freedom from unreasonable search and seizure. Neither are listed in the national sex offender database.
Yvonne Meadows said she objected to Bee Cave Elementary School scanning her license because she was concerned about identify theft and a private company collecting her personal information. "Raptor sold (their system) on this 'registered sex offenders, we need to be on guard' idea, but it was primarily a visitor management system," she told the Austin American-Statesman in its Monday editions. The lawsuit seeks unspecified damages.
Lisa McBride, the lawyer for the Lake Travis school district, said the district thinks its system is reasonable and fully complies with state and federal law.
Some related posts:
- A private technocorrections development to watch for sex offenders
- Another example of the inevitability of technocorrections Are microchip implants for offenders inevitable?
December 1, 2008
Thanks to the apparent foolishness of a prominent NFL player, the folks at Families Against Mandatory Minimums and at the National Rifle Association might have a new high-profile poster-child for their very different public policy causes. I am referencing, of course, the case involving New York Giants wide-receiver Plaxico Burress, whose major criminal law problems are well summarized in these snippets of this New York Times article (emphasis added):
Giants receiver Plaxico Burress was arraigned Monday in a Manhattan criminal court, charged with two separate counts of criminal possession of a handgun in the second degree after accidentally shooting himself in the thigh three days ago at a Midtown nightclub.
He faces a mandatory sentence of 3½ years in state prison, with a maximum of 15 years, on each count....
After a long day — during which Burress spent about five hours at the New York City Police Department’s 17th Precinct station house, where he likely posed for mug shots, was fingerprinted and sat for interviews with detectives — details of the shooting became clearer.
The police said that Burress arrived at the Latin Quarter nightclub in Manhattan on Friday at 11:30 p.m. with four others, including teammates linebacker Antonio Pierce and Derrick Ward. The other two members of their party were not football players, according to police. At 12:05 a.m., a single gunshot is heard.
The criminal complaint, released by prosecutors Monday, said that an onlooker saw Burress near the V.I.P. area of the club holding a drink in his left hand and fidgeting his right hand in the area of the waistline of his pants. The witness then heard a single “pop” sound before hearing Burress say, “Take me to the hospital.”
Burress was on the ground, with his legs shaking, when a bloody gun — a .40-caliber Glock pistol — fell out of his pant leg and onto the floor, the onlooker said. Later, Burress, who does not have a permit to carry a handgun in New York City, was treated and released at a hospital before returning to his home in Totowa, N.J.
On Monday, Mayor Michael R. Bloomberg harshly criticized Burress for carrying an illegal handgun; New York Presbyterian Hospital for failing to call the police of his gun-related injury, as city law requires; and the New York Giants, which also neglected to notify the authorities.
“Our children are getting killed with guns in the streets. Our police officers are getting killed with guns in the hands of criminals, and because of that, we got the State Legislature to pass a law that if you carry a loaded handgun, you get automatically 3½ years in the slammer,” Bloomberg said, speaking to reporters.... “I don’t think that anybody should be exempt from that, and I think it would be an outrage if we didn’t prosecute to the fullest extent of the law, particularly people who live in the public domain, make their living because of their visibility; they are the role models for our kids.”
Bloomberg said that the police did not find out about the incident until it was reported on TV, and that the Giants should have immediately notified the authorities of the shooting. He said the team had a responsibility to do so if their players want to be role models to the public....
Bloomberg also criticized the hospital for failing to call the police. “I think also it is just outrage that the hospital didn’t do what they’re legally required to do,” he said. “It’s a misdemeanor, it’s a chargeable offense and I think that the district attorney should certainly go after the management of this hospital.”
Wow! Though I do not teach my upper-level sentencing course until next semester, this high-profile case, with its many notable participants and many possible legal issues, sounds like a problem I might give on my final exam. Consider these questions right off the bat:
1. In light of the apparently undisputed facts, is there any legally justifiable way for NY state prosecutors to avoid seeking to convict Burress of the state crime which carries a mandatory minimum sentence of 3½ years in state prison?
2. Can and should Burress and his legal team raise a Heller Second Amendment right of self-defense claim in response to his criminal charges? Assuming the Second Amendment gets applied to the states (which seems very likely) and assuming Burress says he carries his gun for personal self-defense (which seems very plausible), anyone who talks seriously about a fundamental right of self-defense (like those at the NRA) ought to be looking to give Burress some help in this case.
3. Is Mayor Bloomberg already making it easier for Burress and his legal team (A) to argue he cannot get a fair trial in NYC, and/or (B) to suggest to the jury (directly or indirectly) that it should consider nullification in this case simply to avoid forcing Burress to go to state prison for 3½ years?
4. Can and should Burress and his legal team raise a head-on due process (or cruel and unusual punishment) constitutional challenge to the statutory mandatory minimum sentence in this case? In light of President-Elect Obama's stated expression of concerns about mandatory minimum sentencing statutes and the Supreme Court's ever-evolving sentencing jurisprudence, the time might be ripe for lawyers at FAMM and other public policy groups to start making a full-scale legal attack on the very constitutionality of mandatory minimum sentencing provisions. Perhaps this line of constitutional argument just got a prominent celebrity spokesman.
December 1, 2008 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, Second Amendment issues | Permalink | Comments (20) | TrackBack
An understandable (but debatable?) child porn declination decision by federal prosecutors
A former student alerted me to this fascinating story from the Buffalo News, headlined "Quadriplegic spared prison in child porn case: U. S. attorney agrees to forgo prosecution." Though the headline provides the basics, here are some notable particulars:
When federal agents and prosecutors first learned about Wayne Schifelbine and his child pornography crimes, their inclination was to put him in prison for a long time.
But then agents discovered something else about the 43-year-old Allegany County man who was using a credit card to buy images from child porn Web sites: Schifelbine is a quadriplegic. He cannot walk, requires 24-hour nursing care and spends all his time in his bed or wheelchair.
After hearing about his physical disabilities, U. S. Attorney Terrance P. Flynn decided to offer the Belmont man an agreement that would carry no criminal conviction or prison time. Schifelbine, however, will forfeit $50,000 to the federal government and his use of the Internet will be restricted....
“Child pornography is a very serious crime that hurts children. But in this case, we came to the conclusion that no punishment in federal prison could compare to the punishment that has already been inflicted on this man,” Flynn said. “You could say that he’s already in prison for life.”
Schifelbine’s attorney, Joel L. Daniels, calls the case one of the saddest he’s seen in 44 years as a lawyer. Both he and Flynn also call it a classic illustration of the dark side of the Internet.
Schifelbine, a former factory worker who suffered severe spinal cord injuries in a 1999 construction accident, has no record of molesting children. He received and looked at child porn, but did not create the material. Even if he wanted to — which he does not — Schifelbine is physically incapable of molesting children, his attorney said....
Flynn, who usually takes a very hard line on child porn prosecutions, said he agreed with Daniels’ assessment of the situation. At the same time, Flynn emphasized that he does not condone the actions of Schifelbine or anyone else who looks at child pornography. “The men who buy or look at child pornography are the ones who create the market for it,” Flynn said. “Ultimately, the federal prison system could have made accommodations for this man. But our thought was, what purpose would that serve?”....
Schifelbine got a “substantial” financial settlement after his accidental fall, and paying the $50,000 forfeiture is not a problem for him, Daniels said.
I have no problem with the declination decision in this remarkable case, and I am always glad to hear stories about a federal prosecutor sensibly using his (unreviewable) discretion to make reasoned and reasonable sentencing decisions. That said, I find intriguing and debatable Flynn's suggestion that prosecuting and potentially imprisoning Schifelbine in this case would serve no purpose.
Many defendants, particularly white-collar, first offenders who have long lived law-adibing lives, often tell an array of sympathetic stories about their personal situation and family circumstances to argue that a prison sentence would serve no purpose. They often sensibly contend that the ordeal of federal prosecution and the collateral consequences of a conviction ensure they never will or can commit future crime. But federal prosecutors often respond that a long prison sentence for such an offender will serve the important goal of general deterrence even if there is no risk of future offense by the defendant.
It seems that Flynn might have made a general deterrence argument to justify prosecution of Schifelbine case. If (and when?) the national media began to discuss a federal prosecutor's decision to prosecute even a quadriplegic for receipt of child pornography, other potential person who might not realize the seriousness of this crime would be sure to take notice. And if this seems harsh, do not forget the case of Danny Espinoza (blogged here), a quadriplegic subject to criminal prosecution for his role in the very accident that led to his disability.
I would like to thank the ABA, Justices and judges, sentencing commissions, criminals and their lawyers....
Of course, it is an honor just to be nominated. But, since nominations were not ever made public, it is more exciting to win again a place on the ABA's list of the best legal blogs. This poston the ABA's blog, titled "50 New Sites Make 2nd Annual ABA Journal Blawg 100," provides the basic back story:
On our second annual list of the best legal blogs, just half of last year’s honorees make a return appearance.
What explains the high turnover? For one thing, every day new legal blogs are started, and some existing blogs—including some that appeared on last year’s list—cease to be updated regularly. Plus, some of the upstart blogs are just plain better than some that made the cut last year.
This year, blogs that aren’t updated at least weekly—no matter how interesting—often didn’t make the grade. We put a premium on blogs that broke news in 2008, or were among the first to provide trenchant analysis of one or more breaking legal news stories.
All kidding aside, I am grateful and honored that the folks at ABA put this blog on its Top 100 list in the crime category for the second year in a row. The full list of the ABA Journal Blawg 100 can be accessed at this link, where one can also find links to some fun blog feature stories.
Lots of clemency and pardon power news and notes
Thanks to lots of good work around the blogosphere, one can keep up effectively with lots of news and notes about the clemency and pardon power:
- From How Appealing here, "Second Circuit holds that The Associated Press has no right to access John Walker Lindh's petitions filed with the U.S. Department of Justice's Office of Pardon Attorney seeking a reduction in his twenty-year prison sentence"
- From Pardon Power here, "Scholarship: Tis' The Season to be Pardoned"
- From the WSJ Law Blog here, "Pardon After-Party: Clemency for Man Who Maintained Innocence"
President-Elect Obama officially names Eric Holder as his AG pick
As detailed in this CQ Politics entry, the likely next U.S. Attorney General was officially named today: "President-elect Barack Obama on Monday tapped former Deputy Attorney General Eric H. Holder Jr. to take the top spot in the Justice Department." Here are some other notable snippets from the CQ report:
Holder would be the first black attorney general. The Senate Judiciary Committee will vet Holder for the post. Several Republicans on the panel have already voiced support for him.
To be sure, Holder will face renewed questions about his role in Clinton’s pardon of fugitive financier Marc Rich in 2001. Rich’s ex-wife, Denise, donated heavily to Democratic causes, including Clinton’s presidential library and Hillary Rodham Clinton ’s 2000 Senate campaign. Holder signed off on the pardon. Holder told the House Government Reform Committee in early 2001, “It is now clear, and this is admittedly hindsight, that we, at the Justice Department, and more importantly, former President Clinton, the American public, in the cause of justice, would have been better served if the case had been handled through the normal channels.”
Senate Judiciary Chairman Patrick J. Leahy , D-Vt., has said that Clinton, not Holder, bears the responsibility for the Rich pardon. Leahy has predicted a “lopsided vote” to confirm Holder.
Some prior posts on the Obama transition, the Holder pick and federal criminal justice issues:
- Lots of buzzing around Eric Holder as the next US Attorney General
- Any early federal sentencing thoughts on Eric Holder, the next U.S. Attorney General?
- Three late afternoon thoughts on the Holder pick: race, tough and tech
- Looking at control of federal prosecutors as we look toward a new administration
- How a new administration is likely to impact federal sentencing practice
- Interesting reflections on Obama appointees from drug policy reformers
"Federal judges to rule on California prison crowding"
The title of this post is the headline of this AP piece reporting on an expected ruling concerning Califorina's prison problems. Here is how the article begins:
California's day of reckoning has finally come for three decades of tough-on-crime policies that led to overcrowded prisons and unconstitutional conditions for inmates. The federal courts have already found that the prison system's delivery of health and mental health care is so negligent that it's a direct cause of inmate deaths.
A special three-judge panel reconvenes Tuesday and is prepared to decide whether crowding has become so bad that inmates cannot receive proper care. If they do, the panel will decide if lowering the inmate population is the only way to fix the problems. That could result in an order to release tens of thousands of California inmates before their terms are finished, a move Gov. Arnold Schwarzenegger and Republican lawmakers say would endanger public safety.
November 30, 2008
How big is the risk that victim videos are more prejudicial than probative?
This article appearing yesterday in the Washington Post discusses the growing trend of using "victim videos" in criminal cases. The article is headlined "Poignant Videos of Victims Valid in Court: Justices Decline to Weigh Use of Such Portrayals," and here are some excerpts:
Fueled by technology and a powerful victims' rights movement, "victim impact videos" are becoming staples in criminal trials nationwide. The increasingly sophisticated multimedia presentations depict victims from cradle to grave, often with soft music in the background, tugging on the heartstrings of jurors. Defense lawyers say the videos are highly prejudicial and have sought to have them banned.
But the Supreme Court this month declined to hear challenges to two such videos, including one of Sara Weir, a dark-eyed 19-year-old who was raped and murdered in 1993. The video contains more than 90 photos of Weir and is set to the haunting tones of Enya.
As a result of the court's decision, experts say the use of such videos will probably accelerate in coming years. "The publicity from the Supreme Court cases is going to make more victims and prosecutors aware of the possibility of technology-aided victim impact statements," said Margaret Garvin, executive director of the National Crime Victim Law Institute. "And I think that's a good thing."
Prosecutors vigorously defend the videos, which are presented as part of "victim impact evidence" in death penalty and non-capital homicides and are usually put together by families, sometimes with help from law enforcement or funeral homes. With defendants able to present extensive "mitigating evidence," prosecutors say multimedia is often the best way to document the life that was extinguished and the pain of those left behind.
While the Post piece provides a somewhat pro-victim perspective on victim videos, T Chris here at TalkLeft provides a defense view on problems with victim videos.
Because I am a strong believer in victims' rights at sentencing, I tend not to be too troubled by victim videos (especially if they are kept relatively brief). I certainly can see potential problems with excessive reliance on victim videos, but I would general trust trial judges to be able to limit effectively the use of videos that are more likely to be prejudicial than probative.
When the pardon power meets the Second Amendment
I helpful reader pointed me to this great Wall Street Journal article comblining two of my favorite legal topics these days: the clemency power and gun rights. The article is headlined "Seeking a Presidential Pardon? Try Praising the Right to Bear Arms -- Five Forgiven by Bush Share a Trait: They Really Missed Their Weapons," and here are excrpts:
On the surface, the list of the 14 people pardoned by the president this week shows few common denominators in terms of time served, geographic location or even type of crime, except that the felonies were non-violent. But a closer look at some of the newly pardoned shows many of them are church-going, blue-collar workers from rural areas (and ardent Bush supporters) who had little trouble finding jobs after their convictions. There is another common thread: the important role firearms once played in their lives.
President Bush has pardoned fewer people -- 171 -- than any president since World War II, with the exception of his father, who pardoned 74. Presidents don't discuss their reasons for issuing pardons, with few exceptions. Nor do they tell petitioners why their wish was granted. The Justice Department's "pardon attorney," who reviews hundreds of petitions a year and recommends candidates to the president, had no comment.
Coincidentally or not, at least seven of the 14 pardoned on Monday are former hunters or shooting enthusiasts. In interviews, five of them said they wrote in their petitions to the government that a desire to win back the right to bear arms was a chief reason for wanting a pardon....
Convicted felons lose a host of civil rights, including the right to vote, seek political office or bear arms. A presidential pardon forgives federal crimes and restores basic rights.
Many felons can win back some rights from their states after they complete their punishment. But the right to possess guns can be restored only by the president, says Margaret Love, a former pardon attorney under the first President Bush and the first term of President Clinton, who pardoned 396, mostly during his second term.
As regular readers know, I consider federal laws making it a serious crime for a non-violent felon to ever posses a gun to be constitutionally suspect in the wake of the Supreme Court's Heller ruling. Though I am still waiting (impatiently) for lower courts to acknowledge the Second Amendment questions that now surround these broad federal firearm restrictions on gun possession, I am glad to see that President Bush seems willing to use his clemency power to attend to these matters.
Some recent related posts:
- Justice Scalia sells out felon gun rights, but on what basis exactly?
- District Court rejects Second Amendment claim from misdemeanant
- Another (too?) brief opinion rejecting misdemeanant's Second Amendment claim
- "Begging Bush's Pardon"
- "What pardons will Bush issue?"
- Lots more talk about Presidential pardons