December 27, 2008
Any thoughts on the top sentencing stories of the year?
This time of year always lends itself to end-of-year reflections, and I have started reflecting on some of the biggest sentencing stories. I would welcome reader input on what should be deemed the biggest sentencing stories of 2008.
Lethal injection litigation, prison overcrowding problems, post-Gall/Kimbroughcircuit rulings, crack retroactivity issues, clemency craziness, and election year debates and developments can all make a case for being the top sentencing story of the year. And, if I am forgetting others, I trust helpful readers will make sure nothing big gets overlooked.
December 26, 2008
"A Father, a Son, and a Short-Lived Presidential Pardon"
The title of this post is the title of this New York Times article with the latest news on the latest presidential pardon snafu. Here is the most notable section for those really interested in trying to figure out what the heck is going on and what is going wrong on the clemency:
The White House said Thursday that when Mr. Bush granted Isaac Toussie, 37, a pardon earlier this week, the president and his advisers were unaware that the elder Mr. Toussie had recently donated $30,800 to Republicans. Mr. Bush took the extraordinary step of rescinding the pardon on Wednesday after reports about the political contributions.
The White House spokeswoman, Dana M. Perino, said in an e-mail message Thursday that the administration never sought information on political donations in considering pardon applications. “This would be inappropriate on many levels,” Ms. Perino said. “Given that no one advising the president knew of the donation by Toussie’s father, and because of the possibility of an appearance of impropriety, the counsel to the president withdrew his recommendation.”
While the younger Mr. Toussie has said nothing publicly since the revelation of the donations on Tuesday, his supporters say he deserved a pardon because he was contrite about his misdeeds and had made significant charitable contributions before and after his convictions. Both of these factors are believed to have been factors in Mr. Bush’s original decision to grant the pardon. “There was a long list of charitable donations and work he had done since his sentence,” Ms. Perino said.
Officials said Fred F. Fielding, the White House counsel, was unaware in reviewing the petition that Mr. Toussie’s father had recently donated $28,500 to the Republican National Committee and $2,300 to the presidential campaign of Senator John McCain of Arizona. People involved in the pardon process say it has become more common in recent months for those seeking clemency to go directly to the White House, as Mr. Toussie’s lawyer, Bradford Berenson, did, rather than go through the Justice Department.
Mr. Bush’s revoking of the pardon was so unusual that some legal experts questioned whether he had the authority to reverse the pardon, one of 19 the White House announced Tuesday. But the Justice Department said it believed that the original pardon announcement was not binding and could be revoked because Mr. Toussie had not received formal notification of the president’s action. Mr. Toussie’s lawyers hope he might still be granted a pardon once the Justice Department completes a formal review.
In this effective post at the White Collar Crime Prof Blog, Ellen Podgor asks these astute questions as a follow up:
- If they hadn't asked about political contributions previously, and had no knowledge of the political contribution at the time of granting this one, then why rescind this pardon? Do you rescind something just because it looks bad?
- It sounds like the father made the contributions and not the son. Do you rescind a pardon because of acts of a parent? And should all people and their families who might be interested in obtaining a pardon need to beware of their contributions and not make any political contributions because it may result in a rescinded pardon if someone finds out about the contributions after the fact?
And, not surprisingly, PS Ruckman at Pardon Power keeps up his effective blogging on all these doings with new posts here and here, titled "Toussie Jammup: Sorry, I Just Don't Believe It" and "Can a President Revoke a Pardon He Has Granted?".
Who bears the costs when a prison goes digital?
Especially since I am planning a trip to my local electronics store this afternoon, I could not resist posting this little article I saw thanks to How Appealing. The report is headlined, "R.I. state prison gears up for the switch to digital on 1,500 TVs," and here is how it starts:
Ask Corrections Director A.T. Wall about the importance of televisions in keeping prisons peaceful and he will paraphrase an old saying: “Idleness is the devil’s workshop.” “An idle inmate can pose a security risk,” Wall says. “We want to keep them occupied, and the opportunity to watch television is one way we do it.”
Which is why the Department of Corrections is spending $175,000 between now and Feb. 17 to rewire the Adult Correctional Institutions and make sure the screens of 1,500 inmate televisions don’t all revert to white static when the nation’s broadcasters switch from analog to digital signals.
And that is only one step. The inmates themselves will have to either come up with $69 for a converter box to use on their existing television or buy a new 13-inch television from the prison commissary for $160 (with the see-through plastic back, of course).
While some prisons around the country have subsidized the cost for inmates to stay connected, Wall said “with the state’s current fiscal climate I’m not willing to use taxpayer money to purchase converter boxes for the inmate population.” Neither is Massachusetts. “No taxpayer funds are being used for inmates’ televisions,” said Diane Wiffin, a spokeswoman for the Massachusetts Department of Corrections.
December 25, 2008
Some more thoughts about the latest ugly Presidential pardon snafu
Thanks to President Bush's bizarre clemency work this week, my e-mail in-box has been a bit too busy for what was supposed to be a day off. I was given permission to reprint this extended and thoughtful set of reactions from a thoughtful reader:
I am surprised at the White House's extraordinary and unprecedented attempt to revoke the pardon granted on December 23 to Robert Toussie. I say "unprecedented" because no president has ever attempted to revoke an unconditional pardon duly granted after it has been delivered to its intended recipient.
Certainly the pardon in Toussie's case was properly granted by the President when he signed the formal pardon warrant. But the question is whether it was "delivered" to Mr. Toussie. In its public statements the White House seems to be saying that the Toussie's pardon was not yet effective because a document evidencing the grant had not yet been sent to him by the Justice Department. But I don't see why any particular form of delivery is constitutionally necessary to make the pardon effective. The 19th century cases in which a pardon document was intercepted on the way to the warden at the prison are just not apposite in this situation, where the pardon was announced by the President himself in a press conference for all the world to hear (presumably including Mr. Toussie himself). If more were necessary by way of delivery, probably someone from the Pardon Attorney's office had already called Mr. Toussie on the phone (assuming they had his number, the application not having been docketed) to give him the happy news of the President's action.
I gather from Dana Perino's comments at the press conference yesterday that Mr. Toussie's case has been referred to the Pardon Attorney, but it is not clear what that individual is supposed to do with it. Should he grant Mr. Toussie a waiver, to allow him to apply before the 5-year eligibility period has run? Should he expedite the ordinary pardon investigation, which ordinarily takes at least 18 months? I say that all this is beside the point, because at this point Mr. Toussie has already been pardoned.
There are a lot of questions to be asked here: For starters, where was the Pardon Attorney? We know from White House statements that DOJ did not investigate or make any recommendation on the Toussie application because he was not yet eligible under applicable OPA housekeeping rules, and that he secured his pardon through an end-run around the DOJ process straight to White House Counsel. This end-run in turn was evidently facilitated by a recent alum of the White House Counsel's staff now working at a private law firm, with the predictable disastrous results for the President. Shades of Marc Rich.
And speaking of Marc Rich, one might well ask why the Pardon Attorney did not make at least some effort, once he saw Toussie's name on the list of those to be pardoned, to flag the serious political problems with the grant before the warrant was signed by the President. The Pardon Attorney is the one who prepares the warrant for the President's signature, so he must have seen the unfamiliar name on the list, just as the former Pardon Attorney Roger Adams saw Marc Rich's name on the list sent from the White House on the final night of President Clinton's term, and tried his level best, though without success (or any help from his political superiors) to stop it.
Which in turn leads me to ask, where were the Pardon Attorney's political superiors in all of this? Was the Deputy Attorney General not working closely with the White House in connection with any pardons that the President might be contemplating at the end of his term? Why was the President once again, as at the end of the Clinton Administration, left home alone by his own Justice Department appointees?
The unhappy episode of the Toussie case raises the question why there was not more of an effort by the Bush Administration to remedy the problems with the pardon process in DOJ that were responsible for the breakdown of the pardon process at the end of the Clinton Administration. Now that yet another President has been embarrassed by the lack of a reliable and accountable system for administering the power in DOJ, maybe the Obama Administration will do what needs to be done to ensure that the President's Article II power can once again be exercised with integrity, efficiency, generosity, and a sense of purpose. In order to do that, however, one must first take the power seriously as an instrument of government, not simply a perk of office.
Some media and blogosphere buzzing about Bush's pardon snafu
Not surprisingly, the media and the blogosphere are abuzz concerning President Bush's decision to grant, and then seek to retract, a pardon for Isaac Robert Toussie, the Brooklyn real estate developer who bilked small homeowners and dad who has been good to the GOP. There is so much worth saying about this story, and here is some of the best of what is already being said.
In the traditional media:
- From the AP here, "Coal for Christmas: Brooklyn man's pardon revoked"
- From Bloomberg here, "Bush Withdraws Pardon After Learning of Contribution"
- From the New York Times here, "Missing Words Suggest Path to a Pardon"
From the Washington Post here, "Bush Revokes Pardon Of GOP Donors' Relative"
Around the blogosphere:
- From Concurring Opinion here, "President Bush Revokes Pardon of Isaac Toussie"
- From Discourse.net here, "Bush 'Revokes' A Pardon (When Do Pardons Vest?)"
- From the Huffington Post, "Rove Fingerprints On Bush's Pardon Reversal?"
- From the Pardon Power here, "On the Revocation of Pardons" and here "The President: Pardons, Language, Spin and ... "
Should (and must?) a federal judge show respect for all of jury's work at sentencing?
Though I could blog/comment forever about the Sixth Circuit's work in the White acquitted conduct en banc case (basics here), my biggest concern with the White opinions (and some commentors) is the failure to directly take on the basic question in the headline of this post. Rather than try to unpack the acquitted conduct issue using the Supreme Court's constitutional precedents (which are all over the map), I wish courts and commentators would simply explore whether and how a federal judge should (and must) show respect to all of jury's work at sentencing.
When the issue is framed this way, I feel confident asserting that, based on both common law traditions and the statutory provisions of the Sentencing Reform Act, a federal judge at the very least should show respect to all of jury's work at sentencing. Moreover, because juries are constitutionally safeguarded criminal justice decision-makers, a good argument can be made that sentencing judges must show respect to all of jury's work at sentencing.
Critically, with the term "show respect," I do notmean to assert that a federal sentencing judge must unthinkingly accept and always give dramatic effect to every implicit aspect of a jury's verdict. But I do mean to assert that a federal sentencing judge should generally assume a jury made a conscientious effort to make a factual and moral judgment concerning the defendant's behavior and thus should generally try to give meaningful effect to all a jury's work-product.
The fundamental reason I find current doctrines as reflected in White so troublesome is because they now essentially require federal judges to disrespect any jury verdict of not guilty when determining a defendant's guideline sentencing range. Though the Booker remedy now allows a federal sentencing judge to vary from a guideline range calculated with acquitted conduct enhancement, the Sixth Circuit's White ruling implies (and the Fourth Circuit has held in its unpublished Ibanga opinion) that a federal sentencing judge must ignore a jury's acquittal and assess a defendant's conduct for guideline purposes the same whether or not a defendant was convicted or acquitted based on that conduct.
Some related posts on acquitted conduct sentencing enhancements:
Top corrections doctor resigns in Washington due to execution protocol issues
This interesting local story from the state of Washington, headlined "Doctor resigns over state executions: Corrections’ top medical officer points to ethics conflict," spotlights the challenges states face if and when they look to medical personnel to help with lethal injection protocols. Here are the basics:
The state Department of Corrections' top medical officer has resigned, saying that the use of agency staff members to prepare for an execution is unethical.
Dr. Marc Stern, who lives in Olympia, said the American Medical Association and Society of Correctional Physicians oppose physician involvement in executions, "and they say physicians should not supervise somebody who is involved in executions." "The only way out we found was for me to recuse myself, and the only way I could recuse myself was to resign," he said.
The agency had been set to execute Darold Ray Stenson, convicted of murder, this month. The execution has been postponed....
Scott Blonien, assistant secretary of the department, characterized Stern's objections as more individual than professional. "It's clear to us that Marc had a personal, ethical conflict, and we respect that. There's nothing we would want to do in the department to cause someone to commit a violation of their personal ethics," he said....
Blonien said Stern had expressed concern that the department did not have authority to get the drugs used for a lethal injection. Blonien added the agency checked with the Attorney General's Office and thinks it has authority to acquire and use the drugs under the law that authorizes injection as a form of execution....
Stern said the ethical conflict isn't personal. "This has nothing to do with my personal opinion of the death penalty. It has strictly to do with the recognized professional ethics," he said.
Some related posts:
- Readings on lethal injection protocols and the role of doctors in executions
- Debate over doctors and death protocols in NC
December 24, 2008
President Bush tries to take back one notable (and noted) pardon grant!?!?!
Thanks to a helpful reporter, I just learned of this remarkable statement from the White House that follows in the wake of yesterday's grant of a new batch of clemencies issued by President Bush. Because I can hardly believe this is not a bad joke coming from the folks at The Onion, I will report the official statement in full text:
Statement by the Press Secretary
Yesterday the President forwarded to the Pardon Attorney a Master Warrant of Clemency including 19 requests for pardons with direction that he execute and deliver grants of clemency to the named individuals.
With respect to the case of Mr. Isaac R. Toussie, the Counsel to the President reviewed the application and believed, based on the information known to him at the time, that it was a meritorious application. He so advised the President, who accepted the recommendation.
Based on information that has subsequently come to light, the President has directed the Pardon Attorney not to execute and deliver a Grant of Clemency to Mr. Toussie. The Pardon Attorney has not provided a recommendation on Mr. Toussie's case because it was filed less than five years from completion of his sentence. The President believes that the Pardon Attorney should have an opportunity to review this case before a decision on clemency is made.
Who is poor Mr. Isaac R. Toussie, you might ask? He happens to be the housing scammer that Ben Smith in this Politico post rightly called an odd candidate for a pardon during these rough economic times.
The New York Times has this City Beat post providing more background on Mr. Toussie and what it calls President Bush's "unusual move" to take back this pardon grant. Though P.S. Ruckman of the terrific Pardon Power blog would know for sure, I think this effort to publicly reverse a publicly announced pardon is unprecedented, not just "unusual."
Unlike others, I am generally disinclined to assert that the Bush Administration can't do anything right. But President Bush's discovery of this brand new way to mess up the use of the clemency power certainly justifies heaping an extra little bit of ridicule on this really, really lame duck.
Some recent related posts:
- President Bush issues holiday week batch of pardons and one more commutation:
- Prez Bush issues (first?) set of lame-duck pardons and commutations
- More proof politicians are very compassionate toward criminals ... who are fellow politicians
- Who do you want President Bush to pardon?
- Will Prez Bush become merciful again as his term concludes?
- "What pardons will Bush issue?"
Sixth Circuit finally issue en banc opinion on acquitted conduct enhancements
Providing a last-minute holiday present, the Sixth Circuit today finally handed down its long awaited en banc opinion in US v. White, in which enhancements based on acquitted conduct were being subject to a variety of challenges. I have not yet had a chance to consume the particulars, but the outcome is disappointing (but not surprising) for those troubled by such enhancements in the wake of Blakely and Booker. Because I have too many reactions to the opinion before even reading it, let me here just report on how the majority and dissenting opinions start.
Per Judge Cook writing a short opinion for nine Sixth Circuit judges:
This is a sentencing appeal. When a jury convicted Roger Clayton White of two counts, but acquitted him of others, the district court looked to conduct underlying the acquitted counts to enhance White’s offense level under the Sentencing Guidelines. White questions whether this practice withstands Sixth Amendment scrutiny, and we hold that it does so long as the resulting sentence does not exceed the jury-authorized United States Code maximums.
Per Judge Merritt writing a long opinion for the six Sixth Circuit judges dissenting:
The majority of my colleagues now send the defendant, Roger White, to prison for 14 additional years for three crimes the jury in its verdict said he did not commit. The enhancement of 14 years more than doubled the sentence to 22 years. There are at least two related but independently sufficient reasons to reverse White’s sentence. First, the reasonableness — and thus legality — of White’s sentence depends entirely on the presence of facts that were found by a judge, not a jury, in contravention of the Sixth Amendment. Second, and more broadly, the use of acquitted conduct to punish is wrong as a matter of statutory and constitutional interpretation and violates both our common law heritage and common sense.
My colleagues do not discuss any of these issues in their opinion, which instead relies upon but fails to understand and completely misapplies the Supreme Court’s opinion in United States v. Watts, 519 U.S. 148 (1997). The majority also misunderstands the Supreme Court’s Apprendi-Blakely-Bookerline of cases, erroneously asserting that judicial factfinding poses no Sixth Amendment problems whatsoever so long as the sentence is within the statutory range authorized by the jury verdict.
Because I was involved as an amicus in this case, I may need the entire holiday season (and lots of egg nog) to fully consume and then (soberly?) comment on the Sixth Circuit's work in White. And though I do not like getting coal in my holiday stockings, I am grateful that this opinion was handed down when I am looking for excuses to avoid grading my Fall exams.
Needless to say, lots of White commentary is likely to follow. In the meantime, I encourage interested readers to comment not only on the substance of the White opinion, but also on its conspicuous holiday timing and its potential as a cert vehicle.
Effective media coverage of capital punishment realities in China (but not of federal capital realities)
Just yesterday I was talking to a colleague about the interesting and dynamic issues surrounding China's approaches and attitudes concerning the death penalty. And today the Washington Post published this front page story headlined "China's Capital Cases Still Secret, Arbitrary." Here are snippets:
Starting in 2007, China began for the first time in more than two decades to require a final review of every capital case by the Supreme People's Court. The hope was to reduce the number of executions and bring some consistency to a process that had been handled unevenly by lower courts. The former president of the Supreme People's Court who pushed for the review, Xiao Yang, vowed that the death penalty would be used only on "extremely vile criminals."
As a result of its reforms, China says, the Supreme People's Court overturned about 15 percent of the death sentences handed down by high courts in the first half of 2008. In a brief report in May, the New China News Agency quoted anonymous sources as saying Chinese courts handed down 30 percent fewer death sentences last year compared with 2006. But in a largely closed legal system directed by party committees, the changes have not been as far-reaching as the statistics suggest, and consistency remains a distant goal.
Defendants on death row continue to be executed for such nonviolent crimes as illegal fundraising, graft, drug dealing and espionage. They are prosecuted and dispatched with a lack of transparency, according to Chinese lawyers who complain of blocked access to their clients and say many confessions are still coerced.
I am intrigued and pleased to see these international death penalty issues getting front-page attention from the Washington Post. But I continue to be greatly troubled and quite stunned that national federal death penalty issues continue to be ignored by the Post and all other major media outlets.
As I have noted in prior posts, the status and developments in federal capital cases remain shrouded in secrecy and seem to be subject to all sorts of arbitrary forces. Specifically, as I reported here, federal executions were put on hold long ago when the legal debate over lethal injection protocols started heating up. But, even though these legal issues were resolved by the Baze ruling and even though many states are back in the execution business, the federal capital system remains in a state of suspended animation. And it is very difficult to even discover what is going on legally and procedurally in the federal capital system.
Given the eagerness with which the traditional media and many academics and courts obsess over state capital cases, I continue to be perplexed and flummoxed by the lack of attention given to federal capital cases. As detailed here at DPIC, there has not been a single federal execution in nearly six years! Nor, to my knowledge is there a single serious execution date set for a single defendant sitting on federal death row. I can certainly riff of the Post headline by asserting that USA's "capital cases are still secret, arbitrary."
As detailed here at DPIC, there are 55 murderers on federal death row and more than a dozen of these killers have been languishing on the federal row for over a decade. Indeed, three defendants who were sentenced to death by a federal jury for series of drug-related murders have been on federal death row since February 1993! I have not seen any news about any of these cases in over a year and there is no reason to believe that these defendants are scheduled to be executed anytime soon. And, I am still patiently awaiting a single public account — from the Bush Administration or from Congress or from the media — concerning why the federal death penalty is still apparently subject to a de facto moratorium on executions and even execution dates.
Some related posts on the federal death penalty:
- What's up with federal executions?
- Inequities and uncertainties in federal death penalty
- Is AG Mukasey going soft on the federal death penalty?
- Why the #$@! is AG Mukasey speaking out against execution for 9/11 plotters and suggesting US justice is sadist?
- The federalization of the death penalty
- Context-free ruminations on the federal death penalty
- Notable second-term Presidential execution realities
- What might a new administration mean for the federal death penalty?
Naked body fraud or naked body pictures: what's worse for federal sentencing purposes?
Especially as I worry about gaining weight from too many holiday meals, this local federal sentencing story from Texas caught me eye. The article is titled "Ex-CEO of weight loss company gets prison," and it also includes information that returns me to my concerns about disparities in how child porn downloading cases are being sentenced around the nation. Here are snippets from an article that should be read in full:
Before learning his sentence Tuesday, former Body Solutions CEO Harry Siskind gave a tearful apology in court, but not to those who bought his sham weight-loss product that claimed people could lose pounds while they slept.
Once Siskind found out he would go to prison for more than three years for lying to keep assets hidden from the Federal Trade Commission, he became indignant. Siskind, 53, raced away from reporters following the proceeding in a San Antonio court, giving a one-finger salute.
The 37-month sentence U.S. District Judge Orlando Garcia handed him riled Siskind and his supporters, who argued that the judge was lenient last week when sentencing a man who pleaded guilty to possessing child pornography, which they believe is a worse offense. Some supporters who didn't attend the court proceeding are prominent San Antonians.
Siskind's lawyer, Robbie Ward, asked the judge to hand Siskind five years of probation. Ward painted Siskind as "an incredibly decent man his entire life" who donated $5 million a year to charities. But in 2002, the FTC imposed a $155 million penalty against Siskind for his misrepresentations.
Ward's filings also said Siskind suffered enough, now is divorced from his wife, Patricia, and has been trying to piece his life back together since his company, Mark Nutritionals Inc., collapsed. "We are asking that you don't let this be the event that defines him," Ward said.
But Assistant U.S. Attorney Bill Harris argued that Siskind was trying to squirm out from under the terms of a plea deal that was reached in May. He argued that a sentence within the recommended guideline range of 30 months to 37 months was appropriate. The judge gave Siskind the high end of that range, fined him $10,000 and ordered Siskind to serve three years of federal supervision after his release from prison....
Inside the court's rotunda, Siskind complained to his friends that he was seen as worse than a "child pornographer." He referred to Sam Mims, a New Braunfels musician and producer whom Garcia sentenced last week to five years of probation for possessing child pornography. In Mims' case, the judge chose to give him probation rather than risk being overturned on appeal. In two cases similar to Mims', the 5th U.S. Circuit Court of Appeals in New Orleans has rejected prison sentences of defendants who like Mims were proactively getting counseling and hadn't acted out by inappropriately touching or molesting children.
"Judge doesn't let nun withdraw guilty plea"
The title of this post is the title of this local article out of Nebraska, which update a story from this summer (covered here and here) concerning ailing elderly nun getting a tough sentence for stealing more than $250,000 to support her gambling habit. Here are the latest specifics:
The appeal of the embezzling nun is done — at least in Douglas County. Douglas County District Judge Thomas Otepka has rejected Sister Barbara Markey's request to withdraw her guilty plea — a request Markey made after being sentenced to prison instead of probation.
Markey, 74, now is expected to appeal her prison sentence to the Nebraska Supreme Court. Markey, a psychologist who developed a widely used Catholic marriage preparation course, was sentenced in July to three to five years in prison — a term that is cut to 18 to 30 months under state sentencing guidelines.
Markey had pleaded guilty to a theft in which prosecutors say she embezzled $250,000 of Omaha Archdiocese funds. At least $76,000 of that amount was gambled away at Council Bluffs casinos.
Markey's attorneys, J. William Gallup and John Berry Jr., ... had asked Otepka to allow Markey to withdraw her guilty plea, saying her prison sentence was a "manifest injustice." Gallup argued that Markey deserved probation — a sentence that has been given to two Omaha Archdiocese priests who have embezzled from their parishes. However, those priests — one stole $125,000, the other, $83,000 — were sentenced by a different judge.
Otepka long has taken a hard line on white-collar crime — sentencing embezzlers to anywhere from two to five years for stealing amounts from $55,000 to $250,000. In his 10-page order, Otepka wrote that he carefully considered Markey's sentence and that he repeatedly advised Markey at the time of her guilty plea that he alone would decide the length of her sentence.
I suppose this case provides a useful reminder during this holiday season about who has the ultimate authority to pass judgment on fellow humans in our terrestrial legal system.
Some related posts:
December 23, 2008
President Bush issues holiday week batch of pardons and one more commutation
The AP is now reporting here that the second batch of lame duck pardons from President Bush were announced today. Here are the basics:
Before leaving for the holidays, President Bush commuted one prison sentence and granted 19 pardons, including one to a man who helped the Jewish resistance in the 1940s.
With this latest batch, Bush has granted a total of 191 pardons and nine commutations. That's fewer than half as many as Presidents Clinton or Reagan issued during their two terms.
Since the early press reports do not mention any other of the recipients, I am guessing Scooter Libby is not to be found on this latest list notwithstanding this week's call for a full pardon for Libby in this Wall Street Journal editorial. Of course, the always terrific Pardon Power is the go-to place for continuing discussion and analysis of this batch of clemencies and of others still hoping and waiting for executive mercy this holiday season.
Some recent related posts:
- Prez Bush issues (first?) set of lame-duck pardons and commutations
- "Begging Bush's Pardon"
- More proof politicians are very compassionate toward criminals ... who are fellow politicians
- Who do you want President Bush to pardon?
- A profile of Prez pardons as we enter clemency season
- Will Prez Bush become merciful again as his term concludes?
- Federal clemency news and notes
- "What pardons will Bush issue?"
- A clemency recipient makes case for the good clemencies
- An effective call for President Bush to be a truly "compassionate conservative" with his clemency power
MORE: The New York Times has this interesting new piece discussing some clemency issues, which is headlined "A New Spotlight on Libby, the Name Not on the Pardon List." The piece suggests that Scootber Libby is not having the kind of re-entry difficulties that can plague other convicted felons.
A prominent "victim" of broad federal child porn law OR just another sex offender?
Regular readers know I have blogged a lot about federal child porn prosecutions and sentencing. Now a notable new case out of California, reported widely through local press and via CNN and the AP, seems to have the potential to raise the profile of these issues. The reporting on this case varies based on the media source, but reports here and here from the San Diego Union Tribune highlight why this case has the potential to draw lots of attention:
A San Diego veterans activist and Vietnam War hero who served in a senior Navy post during the Clinton administration pleaded guilty yesterday to a federal charge of possessing child pornography. Wade Rowland Sanders, 67, acknowledged in federal court in San Diego that last May, he possessed computer files containing 600 images of minors, including a 21-minute video that depicted girls engaging in sex acts with an adult man, according to court records....
In a telephone interview last night, Sanders said he had downloaded the files as part of his research for an article on the sexual exploitation of children in foreign countries. He said his work for the Clinton administration had included aiding victims of child sex abuse in the former Yugoslavia. “I have no sexual attraction to children whatsoever,” Sanders said. “There was no evil intent.”
Sanders, a lawyer, said he didn't realize federal child pornography laws barred downloading or viewing the material even by researchers. He said that is why he decided to plead guilty. “I thought since my motives were pure and innocent, that would make a difference,” he said. “I'm technically guilty of the crime.”
Sanders pleaded guilty to one felony charge of possession of images of minors engaged in sexually explicit conduct. A judge scheduled sentencing for March 30. Sanders faces a maximum of 10 years in prison but could receive far less time. He also could be fined $250,000 and be required to register as a sex offender.
Sanders, a retired Naval Reserve captain, earned a Silver Star, Bronze Star and Purple Heart while serving aboard Swift boats during the Vietnam War. He served from 1993 to 1997 as deputy assistant secretary of the Navy for reserve affairs under Clinton. Since last year, he had been a senior adviser on military and veterans affairs for California Lt. Gov. John Garamendi until resigning Nov. 8. Sanders had served with Sen. John Kerry, D-Mass., in Vietnam, and had been among the senator's most vocal defenders when some veterans questioned Kerry's military record during his 2004 presidential run.
The investigation into Sanders began in October 2007, according to a statement filed in the case by San Diego FBI agent John Caruthers.... On May 2, 2008, agents executed a search warrant at Sanders' home and seized his computer. During the search, Sanders admitted he had downloaded child pornography using the file-sharing program, but said he deleted the files once he noticed they were downloaded, according to the FBI statement. He also denied “any inappropriate contact with children,” Caruthers wrote. The FBI searched the computer and found “multiple videos depicting child pornography” saved on the hard drive.... The prosecutor, Assistant U.S. Attorney Alessandra Serrano, could not be reached for comment yesterday.
Sanders said he believes he is a victim of zealous prosectors. “I got caught in the net,” he said. “I'm not the kind of person they were after.”
Regular readers may recall another recent case of a prominent Californian failing to avoid a long federal prison term by claiming he was just doing research when downloading. As detailed here, Bernie Ward, a prominent San Francisco radio talk show host, got seven years in federal prison for distributing child porn as part of what he called "a research project." For this reason and others, I am always a bit suspicious of defendants who claim "research downloading" while still pleading guilty to charges that regularly result in very long prison sentences even for first offenders.
Notably, this CNN report includes a sentence stating that the "minimum sentence for the charge is five years with supervised release for his lifetime and registration as a sex offender, the prosecutor said." But this short story in the Los Angeles Times asserts that "[u]nder a plea bargain, prosecutors have agreed to recommend a prison sentence of five to six years." Though these press reports may not be fully accurate, they certainly suggest that prosecutors did not believe Sanders' various claims about being a largely innocent downloader.
Some related recent federal child porn prosecution and sentencing posts:
The virtues of SCOTUS selection serendipity
USA Today has this intriguing new article which spotlights that, even when it comes to Supreme Court nominations, who you know may be just as important as what you know. And, as in comedy, timing may be more important than all other aspects of one's performance. The piece is headlined "Timing and luck crucial for seat on high court; Connections will matter as much as credentials if spots open up during Obama's presidency," and here is how it begins:
President-elect Barack Obama is still weeks away from taking the oath of office. The Supreme Court has no vacancies. That hasn't stopped rising anticipation about a court opening that could shape the new president's legacy. When it comes to such vacancies, nothing is ever certain for a president — let alone for a potential nominee.
Justice John Paul Stevens, 88 and in the sights of those watching for court retirements, might not have been appointed in 1975 if President Gerald Ford's attorney general had been someone other than Edward Levi — a Chicago friend and colleague of Stevens'.
Anthony Kennedy, named in 1988, and Samuel Alito, in 2006, won their seats after other presidential choices were rejected or withdrawn.
Sandra Day O'Connor, the first female justice, might not have been tapped in 1981 if she had not, through a fluke, met Chief Justice Warren Burger on a houseboat vacation. The selection process, O'Connor said later, is a "classic example of being the right person in the right spot at the right time. Simply stated, you must be lucky."
As winners and losers can attest, Supreme Court appointments — on the surface all about credentials — often come down to good timing and serendipity. Connections matter, too, as does successfully maneuvering through the Senate, which must confirm high court nominees. A nominee typically emerges from the consensus of top presidential advisers, so those Obama is choosing for top White House and Department of Justice jobs might, down the road, help determine a high court choice.
It has always struck me as valuable and beneficial that Supreme Court openings and nominations have often proven unpredictable and serendipitous. Indeed, as some of my prior posts have suggested, I am concerned that the modern selection process has come to predictably favor federal circuit court judges, which I fear can have a skewing impact on both the work of SCOTUS and also the work of some federal circuit court judges. Perhaps we should also route for more serendipitous stories emerging in the Supreme Court's not-too-distant future.
Some related (and mostly dated) SCOTUS personnel/docket posts:
- Roberts, the cert pool, and sentencing jurisprudence
- Justice Alito jumping out of the cert pool!!
- A modest(?) proposal for filling the bench from the ivory tower
- Why federal sentencing reformers must focus on the USSC and lower courts
"States wrestle with how to fund federal sex offender law"
The title of this post is the title of this effective piece from the Dallas Morning News. Here are snippets:
An effort to create uniform nationwide standards for how to keep track of sex offenders has stalled largely because states being asked to comply with the new federal guidelines can't or won't pay the costs.
After Texas legislators convene in January, they'll have to decide whether to comply with a new federal law that came without funding, or to stick with existing state statutes. Chances are good the Lone Star State won't be alone if it fails to meet a July 2009 deadline; so far, not a single state has complied with the Adam Walsh Child Protection and Safety Act.
The 2006 law was designed to crack down on sex offenders by requiring minimum standards for public registries, including who must register, for how long, and what information is made public. The law also set penalties for failing to register.
California officials estimated compliance would cost the state more than $21 million, according to Allison Taylor, executive director of the Texas Council on Sex Offender Treatment. The as-yet-undetermined price tag for Texas could also run into the millions....
If states don't comply, they'll lose 10 percent of some federal grant money. In Texas, not complying could cost about $700,000, while complying will cost millions more. That may make the decision simple, said Sen. Florence Shapiro, R-Plano, long an advocate of strong sex offender laws. "Seven hundred thousand on the one hand vs. $20 million on the other hand? It's pretty easy to resolve," she said. "Our laws are strong, and we don't need to comply."...
The implementation cost may be the biggest obstacle, but it is far from the only one. Guidelines for implementing the act were not finalized until July, making it difficult for states to get their new laws passed and implemented. In addition, some states disagree with the federal provisions for registration of juvenile offenders, retroactive registration and rating offender risk levels....
Texas leaders are particularly concerned that the new guidelines require lifelong offender registration for certain juveniles age 14 and over. The state experimented with mandatory registration several years ago, but at the urging of prosecutors, defense attorneys and experts, later opted to leave the decision to judges....
Regular readers likely can recall other press accounts of states struggling with the implementation of the Adam Walsh Act (some of which are linked below). I am eager to see how the new Obama Administration and its Justice Department handle these problems (as well as the array of legal issues related to the act already causing splits in the federal courts).
Some related posts:
Three wise sentencing opinions coming from the east (and west) this holiday week
I should know better than to try biblical allusions during this holiday week, but a trio of new and notable sentencing opinions from the First Circuit make a three wise men analogy almost irresistible. The these opinions sharing sentencing wisdom from the east are US v. Giggey, No. 07-2317 (1st Cir. Dec. 22, 2008) (available here), US v. Sherman, No. 08-1385 (1st Cir. Dec. 22, 2008) (available here), and US v. Caraballo, No. 08-1555 (1st Cir. Dec. 22, 2008) (available here). Here is a quick account of what's covered in these cases:
Caraballo considers whether "the Sentencing Commission's recent amendment to the drug quantity table, USSG App. C, Amend. 706 (2007), offer[s] a potential remedy to a defendant who, although convicted of a drug-trafficking offense involving crack cocaine, was ultimately sentenced as a career offender." (The panel says no go to the defendant seeking a sentence reduction.)
Sherman considers whether there was sufficient evidence to support a defendant's jury conviction for possession of a firearm in furtherance of a drug trafficking crime. (The panel says there was, just barely.)
Giggey, which is likely the most important ruling of this trio, starts with this introduction: "The court took this case en banc to consider again whether a conviction for a non-residential burglary is per se a 'crime of violence' under the Career Offender Sentencing Guideline, U.S.S.G. § 4B1.2." (Not anymore says the full First Circuit (which right now has only two more judges than a regular circuit panel).)
Though most sentencing decisions from the First Circuit are thoughtful, these three opinion cover a lot of sentencing ground quite cautiously and conscientiously. Thus, I think it is fair to describe all the opinions as wise (though I suspect very few defendants will consider them divine).
UPDATE: The Tenth Circuit has also been churning out a number of notable sentencing opinions this week, too. I cannot do all the opinions justice (which can be accessed via the Circuit's opinion's page) through a quick summary, but there is new stuff to be found about crack sentencing and crime of violence priors and other classic modern federal sentencing issues.
December 22, 2008
Plot thickens in allegations of prosecutorial misconduct in Senator Stevens' case
As detailed in this new piece in the Washington Times and this post from The BLT, the accusations of federal prosecutorial misconduct in the prosecution of Alaska Senator Ted Stevens have gotten some new force. Here are some details from The BLT post:
A federal judge this afternoon is scheduled to release a whistleblower complaint in which a federal employee alleges misconduct among a law enforcement officer and prosecution team members during the investigation of Alaska Sen. Ted Stevens.
U.S. District Judge Emmet Sullivan revealed the substance of the complaint publicly for the first time in an opinion published Friday night about whether to release the document to the public....
A law enforcement officer who worked closely on the investigation and trial is accused of improper conduct with key government witnesses, according to a synopsis of the complaint that was included in Judge Sullivan's 29-page opinion last week. A federal employee working the case reportedly accepted “multiple things of value” — including artwork and employment for a relative — from sources cooperating with the investigation.
The complainant, a federal employee with “extensive knowledge of the investigation and trial in this case,” according to Judge Sullivan, also alleges that a member of the prosecution team schemed to relocate a witness to keep him from testifying and also intentionally withheld evidence from the defense lawyers.
Some related posts:
- Senator Stevens convicted on all counts
- Some sentencing questions after Senator Stevens conviction
- How should (and will) Senator Stevens' political past and future impact his sentencing?
- Prosecutorial misconduct or just standard operating procedures in Senator Stevens' prosecution?
- A sentencing approach to dealing with prosecutorial misconduct
- District Court embraces a sentencing approach to dealing with prosecutorial misconduct (and highlights the impact of effective scholarship)
UPDATE: The new allegation of prosecutorial misconduct have led the lawyers for Senator Stevens filing this new motion seeking to dismiss the indictment or grant a new trial. Here is the potent conclusion to this new filing in US v. Theodore F. Stevens:
In a case awash with extraordinary revelations, the whistleblower’s complaint is perhaps the most shocking and important. An FBI Special Agent has alleged that his or her colleagues engaged in intentional constitutional violations in the course of investigating and prosecuting this defendant and others. Because of their source, these allegations are highly credible. The misconduct is utterly inexcusable. The Court should dismiss the indictment or, at a minimum, grant a new trial and order discovery and an evidentiary hearing.
"Time Off For Bad Behavior"
Forbes magazine has this notable new piece highlighting one of the few programs in the federal criminal justice system that lets offenders earn a reduction in their sentencing terms. This sub-heading from the article reveals why Forbes is covering this story: " White-collar offenders can get a year off their terms for doing rehab. Funny how many of them suddenly discover substance abuse problems." Here are snippets from the the piece:
[Sam] Waksal is just one of many white-collar inmates who have discovered the Bureau of Prison's Residential Drug Abuse Program. Treatment for federal inmates who abuse drugs (that word defined to include ethyl alcohol) has been around since 1919. But inmates weren't clamoring for rehab programs until Congress passed a law in 1994 offering up to 12 months off a sentence for nonviolent offenders who complete a counseling program. That year only 3,755 inmates were in the rehab program. In 2008 there were 18,000 prisoners in it, with a wait list topping 7,000.
For offenders with lengthy sentences, 12 months may not matter much. But for white-collar criminals like class-action lawyer William Lerach, serving time in a kickback scheme, it can halve a sentence. Unfortunately for Lerach, in June a judge denied his request for the program, ruling that he didn't appear to have an alcohol problem requiring intensive treatment.
The drug abuse program is so attractive it has cultivated a cottage industry of consultants who advise convicts and their lawyers on how to get in. Among them is Larry J. Levine, who started American Prison Consultants after serving nine years for drug-related charges....
Some judges may tolerate overstretched abuse claims as a means to lessen unduly harsh sentences required under sentencing guidelines. Says John Martin, a former New York federal district judge: "A lot of judges feel, if a person is sentenced too long anyway, why not help him get any relief possible to get out earlier." Washington, D.C., criminal defense lawyer Barry Boss, who denies any widespread abuse of the program, says: "When a 50-year-old first offender receives a 10-year prison sentence for an economic crime, I find it hard to accept that people are offended that the person may receive a year off for participation in a rigorous substance abuse program."
To be sure, there is some good that comes of the treatment program, an intense 500 hours of cognitive behavioral treatment over a nine-month period, during which participants are housed in a dorm-like unit set apart from the general population. The Bureau of Prisons cites a 2000 study finding that male inmates who participate are 16% less likely to commit another crime and 15% less likely to relapse to drug use.
The 2009 Criminal Justice Transition Coalition, a group of organizations advocating criminal justice reform, is asking President-elect Barack Obama to expand the program to yet more inmates. Even Sam Waksal might drink to that.
Interesting examination of sentencing in child homicide cases
Especially given that the media coverage of one apparent child homicide seems never-ending, this new paper on SSRN ought to be of interest to both sentencing fans and social scientists. The paper is titled, "Sympathy for the Devil? Child Homicide, Victim Characteristics, and the Sentencing Preferences of the American Conscience," and here is the abstract:
The act of killing a child holds the distinction of attracting a deluge of attention in the media but a relative drip of sociological literature. This thesis deconstructs American views of child homicide and conducts the first experimental test of the effects of victim characteristics like age on sentencing recommendations in four different homicide scenarios: accidental, drunken, impulsive, and premeditated. The findings illuminate the link between social norms and sentencing severity. Ultimately, three conclusions may be drawn: first, child sympathy does not appear to vary by the respondent's demographic traits; second, child killers are sentenced more harshly than the killers of adults, but only when criminal intent is evident; and third, while there is a positive relationship between youth of the victim and the severity of punishment assigned to the offender, the effects for child and teen homicide are not so dissimilar as to contradict existing legal statutes in the United States.