February 12, 2008
Tenth Circuit enforces need for proper guideline calculation
The Tenth Circuit discusses at length post-Booker sentencing realities today in US v. Todd, No. 06-6334 (10th Cir. Feb. 12, 2008) (available here). That discussion starts this way:
On two separate occasions, police apprehended Jared Lee Todd and recovered from him small vials that contained, in total, approximately 37 grams of methamphetamine. In conversations with police, Mr. Todd admitted that his drug dealings went much further, and that he had purchased for redistribution at least two ounces of methamphetamine every month over the last year (680.4 grams in total). Other facts presented to the district court tended to confirm Mr. Todd’s admission. After a jury convicted Mr. Todd of two counts of possessing methamphetamine with intent to distribute, the district court, in calculating the total attributable drug quantity for purposes of the United States Sentencing Guidelines, used only the 37 grams of methamphetamine actually confiscated from Mr. Todd. The court then proceeded to expressly rely on the recommended sentencing Guidelines range for that amount in assigning a sentence to Mr. Todd.
While the Supreme Court’s recent opinion in Gall v. United States, 128 S. Ct. 586 (2007), underscores the discretion district courts are properly due in sentencing, it also reiterates that courts must begin their analysis by calculating correctly the applicable Guidelines sentencing range. Though a district court may choose ultimately to depart or vary from the Guidelines, a properly calculated Guidelines range is, the Court explained, “the starting point and the initial benchmark” in any sentencing decision. Id. at 596. In this case, all of the evidence on record, including testimony of Mr. Todd’s own admission, indicated that he possessed with the intent to distribute quantities of methamphetamine far in excess of 37 grams. In light of this overwhelming evidentiary imbalance, we are obliged to hold that the district court’s use of that drug quantity when calculating the advisory Guidelines range was clearly erroneous, and, given its reliance on the Guidelines when passing sentence, we cannot say the court’s error was harmless.
Extended Third Circuit discussion of Kimbrough
Though it does not appear to break any significant ground, the Third Circuit has a notably lengthy opinion today in US v. Wise, No. 06-4926 (3d Cir. Feb. 12, 2008) (available here). This sentence from the opinion's first paragraph highlights the opinion's import: "Beyond the obvious significance of these appeals to the appellants themselves, these appeals are of particular note because they represent the first cases in this Circuit to address the differential in the powder cocaine and crack cocaine Sentencing Guidelines since the Supreme Court’s recent decision in Kimbrough v. United States, 128 S. Ct. 558 (2007) and the United States Sentencing Commission’s recent amendment to the Guidelines ranges for crack cocaine offenses."
I clearly have been visiting the wrong prisons
In various trips to prisons, I have never seen a drunken orgy. But this new CNN piece suggests that this just means I have not been visiting the right prisons:
Softball, drunken orgies and a prison system run like the mafia. That's what Florida's former prison secretary says he inherited when he took over one of the nation's largest prison systems two years ago....
In fact, on his first day on the job, James McDonough says he walked into his office -- the same one his predecessor used -- and there was crime scene tape preventing anyone from entering. "That was an indication we had a problem in the department," McDonough told CNN in an exclusive interview before he stepped down last Thursday.
McDonough revealed a startling list of alleged abuses and crimes going on inside Florida's prisons:
- Top prison officials admitting to kickbacks;
- Guards importing and selling steroids in an effort to give them an edge on the softball field;
- Taxpayer funds to pay for booze and women;
- Guards who punished other guards who threatened to report them.
"Corruption had gone to an extreme," McDonough said, saying it all began at the top. "They seemed to be drunk half the time and had orgies the other half, when they weren't taking money and beating each other up." Watch a corrupted prison system » He added, "Women were treated like chattel in this department." McDonough described a bizarre prison culture among those that ran the system -- one that he says seemed obsessed with inter-department softball games and the orgies after games.
And some people are getting all worked up about faith-based prisons? Yeesh.
Report on Senate crack hearing
I was busy with other matters and thus was not able to watch the Senate crack hearing via webcast. But, as detailed in this AP report, it appears that the hearing had its moments:
Senate Democrats on Tuesday rejected Attorney General Michael Mukasey's request to change new sentencing guidelines that would enable thousands of federal inmates to seek reductions in their crack cocaine sentences.... Senate Judiciary Committee Chairman Pat Leahy, D-Vt., accused Mukasey of falsely suggesting that the new policy would automatically set free 1,600 violent offenders "to prey on hapless communities."
"As the attorney general, himself a former federal judge, should have known ... no one can be released without a hearing before a federal judge who is obligated to evaluate each case and to consider factors such as the criminal history and violence," Leahy said in a statement. "We can't let such scare tactics by the administration deter us from our goal of achieving fairness and legitimacy in the criminal justice system," said Sen. Edward Kennedy, D-Mass....
Testifying for the Justice Department, Gretchen C.F. Shappert, a federal prosecutor for the Western District of North Carolina, told the Senate panel Tuesday that the new sentencing rules of retroactivity would be too burdensome on the federal court system. Further, the flood would hit certain court districts disproportionately, she said.
Everyone's written testimony from the hearing now appears to be linked on this official website. A quick scan of the testimony did not reveal anything especially new in this old debate, but perhaps readers see some hidden nuggets in the latest round of wacky crack talk.
February 12, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (2) | TrackBack
Gearing up for today's Senate crack hearing
All the usual suspects have useful information on their website in anticipation of today's afternoon Senate hearing on "Federal Cocaine Sentencing Laws: Reforming the 100-to-1 Crack/Powder Disparity." The Sentencing Project has this new webpage with links, and FAMM has this page analyzing some various crack sentencing reform bills that have been put forward. In addition, CQ Today has this effective article about all the current crack wackiness. Here is how the piece starts:
A Tuesday hearing before a Senate Judiciary subcommittee is just the latest front in a widening battle between Democrats and administration officials over federal sentencing guidelines for crack cocaine offenses.
What’s up next? One possibility is legislation designed to block recent action by the U.S. Sentencing Commission — action that effectively reduces sentences for crack cocaine offenses. That legislation may not go very far. But the escalating torrent of incendiary rhetoric designed to maximize political gain could have more far-reaching effects — especially in an election year.
The CQ Today article effectively highlights the interesting — and highly unpredictable — political stories surround this Senate hearing and the broader sentencing issues that it raises. In an election year in which very few folks inside the Beltway have few strong political talking points, I won't be surprised to see a return to "tough-on-crime" rhetoric coming from both sides of the ailse. However, given the economic and human costs of the legislation that this rhetoric has produced — as highlighted by my last three posts about Idaho reforms and Sargeant Lett and the pardon power — this kind of rhetoric may not be as politically effective as it once was. At least that's what I am hoping, and this Senate hearing may well provide a very interesting window into how both parties are thinking about crime politics for November 2008.
Proof that the politics on these issues are changing comes in part from this new Washington Times editorial, titled "Reforming crack-cocaine law," authored by J.C. Watts and Asa Hutchinson. Here is how it starts:
Both of us are former Republican congressmen; one of us is the former head of the Drug Enforcement Administration; and neither of us has ever been accused of being "soft on crime." That is why some may find it surprising that we respectfully disagree with our attorney general with regard to federal sentencing guidelines on crack and powder cocaine. Simple standards of fairness call for the attorney general to support the recommendations of the U.S. Sentencing Commission, which reduce the disparity of sentences and make the changes retroactive.
Some recent related posts:
Idaho joins states struggling with prison overcrowding
A bill that would give Idaho judges greater discretion to keep drug addicts out of prison even if they've been convicted of drug-dealing crimes will get a full hearing before the House Judiciary, Rules and Administration Committee. It's a modest effort to loosen Idaho's mandatory sentences for drug offenses and ease overcrowding in the state's prisons....
Idaho now has 7,400 people behind bars. More than half of them are there due to drug-related offenses. The state has shipped about 500 people to other states because there's no more room in prisons in Idaho. Under the bill, judges could opt for shorter, treatment-focused sentences for addicts convicted of drug-dealing crimes, on the presumption that if they get clean they're less likely to re-offend.
Currently, Idaho has mandatory sentences for a range of drug-trafficking offenses that give judges little or no discretion. Many sentences entail at least three to five years in prison. The bill "ain't a bad idea," Rep. Dick Harwood, R-St. Maries, told The Associated Press. "Our prisons are pumped full. It would be nice to give judges discretion about whether to send somebody to prison or to some other treatment program. In reality, they're the ones that are sitting on the front lines, not the legislators who are making the laws."
Idaho lawmakers have been focusing more and more on trying to address drug problems among those entering the criminal justice system. In addition to LeFavour's bill this year, Rep. Jim Clark, R-Hayden, has introduced another sentencing reform measure that would expand misdemeanor drug courts to help stop minor offenders from sliding into more serious substance abuse-related crimes.
This story provides just another example of how states are having to consider sentencing reforms as they deal with the economic hangover from the tough-on-crime, war-on-drugs, lock-em-all-up mentality that has dominated the political landscape over the last two decades. Only now are the bills coming due for this politically popular but very expensive approach to non-violent drug crimes. And, as detailed in the links below, state legislatures from coast-to-coast can no longer afford to ignore these problems:
Recent coverage of other states' struggles with the various costs of large prison populations:
- see also this post, "Costs cause states to pursue prison alternatives"
February 11, 2008
The amazing federal sentencing story of Sgt. Patrick Lett
Regular readers may recall some prior posts about the sentencing of Sgt. Patrick Lett (many of which are linked below). I am proud that Sgt. Lett is now my client and that, along with my colleague Douglas Cole of Jones Day, I can report that a cert petition is about to be filed on Sergeant Lett's behalf.
And I am pleased to report that Adam Liptak's Sidebar column in Tuesday's New York Times tells Sgt. Lett's story. Here are long excerpts from a story that should become a movie (especially if there is the appropriate happy ending):
Matthew Sinor was in his second year of law school at Ohio State a couple of years ago when he heard that an Army buddy had gotten into trouble with the law. Mr. Sinor rescheduled two exams and flew to Mobile, Ala., to make sure nothing went awry at his friend’s sentencing hearing.
The defendant, Sgt. Patrick Lett, had served 17 years in the Army, including two tours in Iraq, and he had pleaded guilty in federal court to selling cocaine. It was up to Judge William H. Steele, a former marine, to decide how to punish him. “I don’t normally see people standing before me in uniform,” Judge Steele said.
Sergeant Lett’s commanding officer, Capt. Michael Iannuccilli, testified that the man he knew was “a patriot, father and a good man.” “I would gladly deploy to Iraq with him and entrust my life to him,” Captain Iannuccilli said. “I’d trust my soldiers’ lives to him. He’s been nothing but an exemplary soldier.”...
Judge Steele made plain that he wanted to give Sergeant Lett the briefest possible sentence. But Congress had set a mandatory minimum sentence of five years, Judge Steele said, and that is the sentence he reluctantly imposed.
Mr. Sinor, the law student sitting in the courtroom, had studied sentencing law with Douglas A. Berman, an Ohio State law professor and one of the nation’s leading experts on the subject. Judge Steele had, Mr. Sinor believed, overlooked a five-part statutory “safety valve” that permits shorter sentences for defendants with unblemished backgrounds who played minor roles in crimes that did not involve violence and who had told the truth about what happened. Few defendants qualify. Sergeant Lett did. So Mr. Sinor wrote to Judge Steele, with copies to the lawyers, explaining the point they had all missed.
Judge Steele agreed, and he revised Sergeant Lett’s sentence to time served — 11 days. The next day, the judge invited Sergeant Lett to his chambers for a chat. “You should thank God for a friend like Matt,” Judge Steele said, as Sergeant Lett recalled. “I want you to go back in the military to do some good for your country. I know I will never see you again in my courtroom.” Later, Judge Steele amended the conditions of Sergeant Lett’s probation to allow him to carry a weapon, a necessity in his line of work....
In April, a three-judge panel of the federal appeals court in New Orleans reversed Judge Steele. The decision was frank in its admiration for a fine soldier and mechanical in its application of the law. The appeals court did not discuss whether Judge Steele had been right to apply the “safety valve,” saying “reasonable arguments can be made on both sides.” Instead, the panel said that the law simply did not allow Judge Steele to revise the sentence once he had imposed it.
True, there is a rule of criminal procedure that allows judges to “correct a sentence that resulted from arithmetical, technical or other clear error,” so long as they do it within seven days. Math can be fixed. But since Judge Steele’s mistake was in his understanding of his own power to do justice, the panel said, Sergeant Lett must serve five years.
Put another way, Judge Steele could have sentenced Sergeant Lett to time served at the sentencing hearing. By the next day, though, it was too late.
Professor Berman and Douglas R. Cole, of Jones Day in Columbus, Ohio, plan to file a petition to the Supreme Court on behalf of Sergeant Lett on Tuesday. They are working without pay. “This is a person who causes those who know him to go to extraordinary lengths to help him,” Mr. Cole, a former Ohio solicitor general, said of his client.
Some related posts:
Editorial on presidential pardon practices
This editorial in today's San Francisco Chronicle, titled "Bush fumbles on pardons," keeps the spotlight on the recent ugly news from the US Pardon Attorney's Office. Here are snippets:
President Bush always has had a reputation for being tight in his exercise of the presidential pardon. Oddly, the pardon is the one area in which his power is absolute — a president essentially can pardon or commute the sentence of any felon for any reason — yet this is the rare executive power Bush has chosen to underutilize. So much for his compassionate conservatism.
Last Monday, a New York Times opinion piece written by George Lardner, an associate at the Center for the Study of the Presidency, reported that Roger Adams, the Department of Justice Pardon Attorney under President Clinton and Bush, had been transferred to a new DOJ position. The transfer followed a December 2007 Inspector General's audit that found that Adams had acted improperly when he described a drug convict seeking a pardon as "about as honest as you could expect from a Nigerian."
It remains unclear whether Adams is a major factor behind the meager number of pardons issued by Bush, who has issued a stingy 142 pardons and — even stingier — a mere five sentence commutations since assuming office in 2001. Ultimately, the responsibility lies with a president who has shown no interest in freeing offenders convicted of often draconian federal mandatory-minimum sentences — unless the offender is the convicted lying and justice-obstructing former White House aide, Lewis "Scooter" Libby.
It's true that Bill Clinton tarnished the pardon process by issuing 140 last-minute pardons without proper review — to such unworthies as billionaire fugitive Marc Rich, who was hiding in Switzerland following a 51-count, 1983 indictment for tax evasion, racketeering and illegal trading. Bush has erred in freeing few prisoners despite the record number of felons in federal prison....
In his last year in office, George W. Bush has an opportunity to show Americans outside his narrow voter base that he believes his rhetoric and wants to help all American families.... [Hundreds of] Americans are serving excessive sentences for low-level crimes. The mercy that freed Libby is beyond their reach, and that is wrong.
Some recent related posts:
UPDATE: Writing here at his blog Pardon Power, P.S. Ruckman justifiably and forcefully criticizes this Chronicle editorial for not criticizing the Clinton Administration more for its poor pardon record. Here are excerpts:
Marc Rich? Are you kidding me? You are writing an editorial on the pardon power, non-violent drug offenders and the Clinton administration and you mention Marc Rich? Why not mention that fact that Clinton — like Bush — also "freed few prisoners despite the record number of felons in federal prison" (see this CJCJ article on Clinton's "prison legacy") and — even worse — pardoned his own half-brother (Roger Clinton), who was convicted on drug related charges?!...
[W]hat is worse? Bill Clinton publicly asserting these supposed beliefs about the severity of federal sentencing and then doing nothing about it? Or, President Bush not doing as much as the Chronicle would have him do?... Shame on Mr. Clinton. Shame on Mr. Clinton's brother. Shame on Hillary Clinton's brother. Thank goodness Mrs. Clinton was completely unaware of everything all the while!
Meanwhile, just forget about Marc Rich, Chronicle. He was nothing!
More details on DOD seeking the death penalty in GITMO cases
As if there wasn't enough to talk about concerning the death penalty, here is an official press release titled "Defense Department Seeks Death Penalty for Six Guantanamo Bay Detainees." Here are a few excerpts:
The Defense Department announced today it has sworn criminal charges and is seeking the death penalty against six detainees held at Guantanamo Bay, Cuba.
The detainees charged include Khalid Sheikh Mohammed, the alleged mastermind behind the Sept. 11, 2001, terrorist attacks, and five others charged in connection with the attacks, Air Force Brig. Gen. Thomas W. Hartmann, legal advisor to the convening authority in DoD’s Office of Military Commissions, told reporters at the Pentagon....
The chief prosecutor, who submitted the charges, has recommended that the six detainees be tried jointly and that the case be referred as capital for each defendant. Now that the charges are sworn, the convening authority, Susan Crawford, will review the charges and supporting evidence to determine whether probable cause exists to refer the case for trial by military commission and whether the case should be capital, Hartmann said.
If Crawford does refer the case to trial, it will take place at Guantanamo Bay, and the Defense Department will make the hearings as open as possible, Hartmann said. He emphasized that the charges today represent allegations only, and the detainees are innocent until proven guilty.
The charge sheet details 169 overt acts allegedly committed by the defendants in the planning and execution of the Sept. 11 events.... In addition to the right to examine evidence used against them, including classified evidence, Hartmann noted that detainees in the military commissions process also have many other rights, including the right to remain silent, the right to representation by a detailed military counsel or civilian counsel at no expense to the government, the right to obtain evidence and call witnesses on their own behalf, the right to cross-examine prosecution witnesses, and the right to be present during presentation of evidence.
In the case of a capital offense, a military commission panel composed of at least 12 members will determine a detainee’s guilt, and the detainee has the right to appeal the panel’s decision first to the Court of Military Commission Review, then through the District of Columbia Circuit Court of Appeals to the U.S. Supreme Court....
Hartmann noted that the sequence of events used in charging detainees at Guantanamo Bay is very similar to that used in charging U.S. servicemembers in military courts. “It's our obligation to move the process forward, to give these people their rights,” he said. “We are going to give them rights. We are going to give them rights that are virtually identical to the rights we provide to our military members, our soldiers, sailors, airmen and Marines who fight in the battlefield, and I think we'll all agree are national treasures.”
Recent related post:
Bill Lerach gets (plea bargained max of) two years in prison
As detailed in this early AP report, "a former partner at a prestigious New York law firm has been sentenced to two years in federal prison for his role in a lucrative kickback scheme involving class-action lawsuits. William Lerach was also sentenced Monday to two years probation, fined $250,000 and ordered to complete 1,000 hours of community service."
This somewhat unsurprising outcome can be spun in so many ways. This was the max Lerach could get under the terms of the plea agreement, so this is arguably a sentencing win for federal prosecutors. But, as detailed here, Lerach had put together such a favorable plea agreement, federal prosecutors at sentencing were forced to recommend a below-guideline sentence. Also, against the backdrop of the decades of imprisonment given to many other prominent high-profile white-collar offenders, Lerach has to be content with the ultimate outcome.
Related prior posts:
No rest for the sentencing weary in the Sixth Circuit
Though I just finished consuming the amazing Sixth Circuit opinions in the Vonner en banc ruling late last week, this morning brings another must-read for the Sixth Circuit sentencing aficionado. The ruling comes in US v. Thompson, No. 06-6233 (6th Cir. Feb. 11, 2008) (available here), and once again Judge Merritt's dissent (and the majority's response) that provides the most potent quotables. Consider these two sentences, for example, from the last paragraph of the dissent:
Unfortunately, the sentencing process in this case was just a repeat of guidelinitis, the system of rote sentencing in which the sentencing judge ratchets up the sentence instead of engaging in anything close to the deliberative or reflective process outlined by the two overriding principles stated above. The determinate sentence based on judicial fact finding, including a consecutive mandatory sentence based entirely on facts never found by the jury or admitted, makes the principle of Blakely, Booker, and Cunningham a joke.
The majority gets in a few zingers during the jurisprudence debate, as evidenced by these lines of response:
The dissent proposes a “Golden Mean” to guide sentencing courts based in part on the principle that all judicial factfinding must be eschewed unless either the factfinding results in a sentence somewhere within the initial base-offense level under the Guidelines or the district court explicitly explains why the concepts of general and individual deterrence outweigh the mitigating circumstances and the likelihood of successful rehabilitation. Dis. op. at 14. In order to adopt this Golden Mean, however, courts would first have to don the crowns of philosopher-kings — for that is the only way that any court in this circuit could avoid the clear import, reasoning and holding of binding precedent.
Of course, courts are unlikely to be able to don the crowns of philosopher-kings anytime soon: few ivory-tower academics are likely to give up these crowns with a serious fight.
Crack debate becoming really whack really quickly
When the US Sentencing Commission decided in December to make its new crack guidelines retroactive effective March 3, 2008, I knew that the script was already in place for sentencing March Madness. But with AG Michael Mukasey's recent congressional testimony urging Congress to block retroactivity for the new crack guidelines (basics here and here), crack wackiness has gotten a running start. And there is no evidence that sanity is going to prevail anytime soon. Indeed, news reports and upcoming events suggest that the crack story will only get more whack in the days and weeks ahead.
First, consider this interesting and troublesome news report from Buffalo, headlined ""Battle shapes up over crack sentences: Waivers may block bids for early release." The article indicates that the local US Attorney may rely on appeal waivers in plea agreements to try to deny defendants who pled guilty the benefit of the new crack guidelines:
Crack dealers convicted in Western New York may face a legal fight from federal prosecutors if they apply for early releases from prison under new sentencing guidelines approved late last year....
U.S. Attorney Terrance P. Flynn may oppose requests to reduce the sentences of previously convicted people, based on a legal waiver that is routinely included in federal plea agreements filed in Buffalo and Rochester. Dating to at least 1997, hundreds of federal drug offenders in the region have agreed to the waiver, promising that they would never ask for reduced sentences — even if future changes in the law allowed them to do so. “At this point, we haven’t decided whether we will try to enforce the waiver,” said Assistant U.S. Attorney Joseph M. Guerra III, Flynn’s top aide for drug prosecutions. “We’ve talked about the situation with [Justice Department] officials in Washington, and we’re waiting for guidance or directives from them.” ....
At least eight men and one woman already have filed court papers in Buffalo or Rochester, asking for their crack sentences to be reduced, according to Guerra.... Most of the federal prosecutors throughout the country do not require offenders to sign the kind of waiver that is required locally, court officials said....
Of course, one of many ironies of prosecutors trying to use appeal waivers to block crack retroactivity would be that only folks who pled guilty and accepted responsibility would get stung by this policy. Defendants who went to trial and lost don't have appeal waivers to worry about, but defendants who took accepted the government plea terms are now at risk of getting the courtroom door shut as a result of their decision to plead guilty. I guess this could be an example, to tweak a great quote, of no good plea deal going unpunished.
Meanwhile, as detailed in this official notice, tomorrow brings a hearing on "Federal Cocaine Sentencing Laws: Reforming the 100-to-1 Crack/Powder Disparity" scheduled by the Senate Committee on the Judiciary before the Subcommittee on Crime and Drugs at 2:30 pm. Here's the current witness list:
- John Richter, US Attorney on behalf of the Department of Justice
- District Judge Ricardo H. Hinojosa, Chair of the U.S. Sentencing Commission
- District Judge Reggie B. Waltonon behalf of Criminal Law Committee of the Federal Judicial Conference
- Nora Volkow, M.D., Director, National Institute on Drug Abuse, Department of Health & Human Services
- James Felman, Sentencing Committee of the Criminal Justice Section of the American Bar Association
I believe this hearing is supposed to be focused on possible legislative changes to the 100-1 crack/powder ratio that remains in place in federal statutory mandatory minimum provisions. However, in light of AG Mukasey's call for legislation to block the retroactivity of the new crack guidelines, I would expect all sort of craziness coming from the star-studded group of Senators that sit on the Senate Judiciary Subcommittee on Crime and Drugs.
February 11, 2008 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (5) | TrackBack
What sentence will (and should) Bill Lerach get?
As detailed in this Reuters story, class-action attorney Bill Lerach has lots of notable supporters as he faces sentencing on Monday:
Famed San Diego class-action attorney William Lerach has asked a federal judge to sentence him to a year in prison and to let him serve half that stretch at home as punishment for his role in a client kickbacks scheme, according to court papers filed Friday.
Scores of supporters, including Ralph Nader, commentator Ben Stein and U.S. Sen. Carl Levin, filed letters praising Lerach with the court of U.S. District Judge John Walter, who is set to sentence Lerach Monday. Prosecutors have asked Walter to sentence Lerach, best known for winning more than $7 billion in legal settlements on behalf of Enron investors, to two years in prison....
The federal probation office recommended a sentence of 15 to 21 months, two to three years of supervised release and a fine of $4,000 to $40,000 for Lerach. Defense attorney John Keker argued in a sentencing memo filed Friday that his client deserves a lighter sentence in light of “his exemplary character and compelling personal history and his continuing value to the community.” The sentencing memo excerpted at length the letters of support, which came “from gardeners to judges, adversaries to colleagues, family members to friends,” as well as investors who recouped lost funds thanks to Lerach, Keker wrote.
Interestingly, as detailed in this New York Sun article, one of the letter submitted on Lerach's behalf has some notable comments about the practice of paying plaintiffs:
A prominent class-action lawyer facing sentencing today for secretly paying plaintiffs to file securities lawsuits, William Lerach, is suggesting that the under-the-table practice was widespread and was not isolated to the firm he helped run for decades, Milberg Weiss. Lerach's claim that the payments were commonplace came in a letter one of his family members filed with Judge John Walter, who is scheduled to impose the sentence during a hearing this morning at federal court in Los Angeles....
"I did something wrong and I have to pay the price. Everybody was paying plaintiffs so they could bring their cases. I thought I had to do it, too," Lerach recently told one of his children, according to the letter. "After they changed the law, I stopped doing it, but other people at my firm kept doing it. I didn't know they were … I made the wrong decision and I have to go to jail."
The letter containing Lerach's comments on the scope of the secret payments was among those filed under seal, but an excerpt from it appeared in a defense pleading that was not properly redacted.
Related prior post:
Guantánamo detainee cases now about sentencing issues
As I have often said on this blog, all big public policy matters eventually become sentencing issues in some way. This New York Times article, headlined "U.S. Said to Seek Execution for 6 in Sept. 11 Case," highlights why GITMO prosecutions are now here:
Military prosecutors have decided to seek the death penalty for six Guantánamo detainees who are to be charged with central roles in the Sept. 11 terror attacks, government officials who have been briefed on the charges said Sunday. The officials said the charges would be announced at the Pentagon as soon as Monday and were likely to include numerous war-crimes charges against the six men, including Khalid Shaikh Mohammed, the former Qaeda operations chief who has described himself as the mastermind of the attacks, which killed nearly 3,000 people.
A Defense Department official said prosecutors were seeking the death penalty because “if any case warrants it, it would be for individuals who were parties to a crime of that scale.” The officials spoke anonymously because no one in the government was authorized to speak about the case. A decision to seek the death penalty would increase the international focus on the case and present new challenges to the troubled military commission system that has yet to begin a single trial....
Relatives of the Sept. 11 victims have expressed differing views of potential death sentences, with some arguing that it would accomplish little other than martyring men for whom martyrdom may be viewed as a reward.
But on Sunday, Debra Burlingame, whose brother Charles F. Burlingame III was the pilot of the hijacked American Airlines Flight 77 that was crashed into the Pentagon, said she would approve of an effort by prosecutors to seek the execution of men she blames for killing her brother. Ms. Burlingame said such a case could help refocus the public’s attention on what she called the calculated brutality of the attacks, which she said has been largely forgotten. “My opinion is,” she said, “if the death of 3,000 people isn’t sufficient for a death penalty in this country, then why do we even have the death penalty?”
In my view, the provisions of the federal Crime Victims Rights Act (CVRA), 18 U.S.C. § 3771, can and should be read to grant rights in GITMO prosecutions to all the victims of the September 11 attacks. Notably, key provisions of the CVRA, like § 3771(a)(5) and (c)(1), provide crime victims with a "reasonable right to confer with the attorney for the Government in the case" and require "the Department of Justice and other departments and agencies of the United States" to "make their best efforts to see that crime victims are notified of, and accorded, the[ir] rights" under the CVRA.
I wonder if DOJ and all federal officials involved in these GITMO cases have reached out to all the 9/11 victims to get their input on the decision to seek the death penalty. I wonder if Professor Paul Cassell or others who work on CVRA issues on behalf of crime victims might get more involved in GITMO matters now that the death penalty is on the table.
Where the bugged water cooler must reside
A couple of years ago, at a law blogger conference at Harvard Law School where folks debated the scholarly potential of blogs, Kate Litvak derisively described law professors blogs as a "bugged water cooler." As suggested by my paper for this conference, I have never thought much of this analogy; but this great-looking new group blog by law professors, because it is titled "The Faculty Lounge," makes me now think Litvak was perhaps on to something.
The Faculty Lounge, which is sub-titled "Conversations about law, culture, and academia," has a great group of contributors. Also, its first four category archives all involve topics dear to my heart: Blogs and Blogging, Constitutional Law, Criminal Law, Law School Hiring. I am already looking forward to frequently visiting TFL.
February 10, 2008
Beating the odds?
Though genuinely a serious issue, I have a hard time resisting a few chuckles upon seeing this news item from Boston:
A convicted Level 3 sex offender has won $10 million in the Massachusetts State Lottery. The Worcester Gazette & Telegram reports 56-year-old Daniel Snay, of Uxbridge, could now face charges because he failed to notify authorities that he had moved, according to Connecticut State Police. “I’m flabbergasted,” Connecticut State Police Lt. Paul Vance told the Telegram. “His whereabouts, until you told me about this, have been unknown to us. But I guess you could say he’s very fortunate.”
Snay works driving trucks for a yacht dealership in Mendon. He won the $10 million from a $20 scratch ticket purchased at Cumberland Farms in Hopedale. But the lottery winnings also come with unwanted publicity. “He was concerned, but there’s not much you can do about it,” said Snay’s lawyer Joseph M. Fabricotti. “We talked about it and he understood this was one of the repercussions that could happen.” Snay’s record of sexual assaults dates back to 1974. He has been convicted six times of indecent assault and battery in Massachusetts. Level 3 offenders are considered the most dangerous and the most likely to commit another crime.
An intriguing project for criminal conversations
Professors Paul Robinson and Kimberly Ferzan have created an intriguing new project entitled Criminal Law Conversations, which is explained at this slick website. Here is part of the pitch on the website:
We invite criminal law scholars around the world to contribute to an exciting peer engaged project of criminal law "conversations" to be published collectively as a book. Concise "core" papers, not to exceed 5000 words (approximately ten single spaced pages), each summarizing a theory or position, will each be followed by a number of short (normally no more than 800 words two pages or less) comments, with a final reply to the comments by the original core paper author.
The goal of Criminal Law Conversations (CLC) is to promote thoughtful critiques of important issues. Too often opposing advocates talk past each other. CLC's web based virtual "conversations" are designed to help opponents join issue. The website is not a blog but rather a vehicle for nominating and organizing the project's topics and contributors.
The personal realities and opportunity costs of capital cases
Thanks to How Appealing, I saw this interesting piece in the Casper Star-Tribune about some personal realities that come from working on a capital case. Here are excerpts:
Intensely stressful. Overwhelming. Simply miserable. The attorneys who've litigated death penalty cases in Wyoming don't mince words when describing the experience. Fighting for the ultimate punishment, or fighting to prevent it, is an emotionally taxing business that sticks with the participants long after the outcome has been decided....
Last Monday, prosecutors in Natrona County disclosed their plans to seek the death penalty against Donald Rolle, a Casper man accused of murdering Jennifer Randel, a woman he'd dated and been convicted of assaulting in the past. If the experience of others is any indication, the participants in the Rolle case can expect a long, difficult process.... Attorneys who've litigated capital cases say they differ from other trials -- even murder trials where defendants face life behind bars. "I don't know if anybody is so callous and indifferent that they don't spend many, many nights tossing and turning, trying to make sure they do the right thing," Newell said....
Death penalty cases proceed slower than a typical criminal case. Just getting to trial can be time consuming. In a regular criminal proceeding, attorneys might file a handful of motions. In a capital case, they sometimes file more than 100. Jury selection also takes longer. It might take a morning to seat a jury in murder cases that don't involve the death penalty. It took more than a week to seat a jury for the 2004 trial of Dale Wayne Eaton, the last defendant in a capital murder trial in Natrona County. It's also grueling process for jurors, who normally have little experience with the legal system....
The manpower required for a death penalty case is considerable. Keith Goody, who represented James Harlow, one of Wyoming's two inmates now on death row, estimates a lawyer can spend more than 1,800 hours on a death penalty case. "If you look at that, that's a year's worth of one lawyer's time," he said....
Stories like this always bring me back to thinking about the opportunity costs of the modern administration of the death penalty. There are literally millions of law-abiding Americans who could and would benefit greatly from just a few hours of a lawyer's time. And yet, while lots of law-abiding poor people have to make due with help from a lawyer, murderer James Harlow received the benefit of " year's worth of one lawyer's time" principally because the state of Wyoming decided it wanted to execute Harlow for his crime.
The opportunity costs, of course, extend far beyond the time of defense lawyers. How many crimes will go unprosecuted or under-prosecuted in Natrona County while state prosecutors invest resources in trying to add Donald Rolle to Wyoming's death row? How many civil lawsuits in the state will have to wait while state judges consider the "more than 100" motions that could be filed in the Rolle case? How many other state employees will get consumed (and perhaps even emotionally scarred) by the "long, difficult process" that just about every capital case creates?
As I explained here a few months ago, I am quite ambivalent about the death penalty in theory. But articles like this one from Wyoming confirm my view that the modern American death penalty system as administered by states involves an expensive, convoluted and distorting legal machinery that probably does more harm than good. But that is why I tend to be drawn more toward arguments to fix the death penalty --- by, as suggested here and here, making it exclusively federal --- rather than toward the kinds of absolute claims of most abolitionists.
"Where candidates stand on crime, death penalty"
The title of this post is the title of this new article in the San Francisco Chronicle. Before even reading the article, I already knew that all the 2008 presidential candidates are generally against crime and generally for the death penalty, but the article usefully provides a bit more nuance that its headline. Here are some long snippets from a very notable article:
With the Democratic nomination still up in the air after the Super Tuesday primaries, the evolving stances of Clinton and Obama on crime and punishment offer a point of comparison for voters in upcoming primaries, including Tuesday's votes in Virginia, Maryland and the District of Columbia. Although Clinton and Obama, both lawyers, have some important differences, their positions on two of the most politically sensitive crime issues — the death penalty and gun control — have converged....
The two differ on crime-related issues that have a lower profile but affect many thousands of prisoners, most of them minorities — the disparity between sentences for offenses involving crack and powder cocaine, and the merits of federal mandatory-minimum sentencing laws. On both, Clinton lines up with the prosecution, Obama with the defense.
Such disagreements scarcely exist on the Republican side. John McCain, Mitt Romney (who dropped out of the race Thursday) and Mike Huckabee are equally fervent in their support of the death penalty, opposition to gun control, allegiance to the war on drugs and abhorrence of liberal judges, while occasionally accusing one another of backsliding. One note of dissent comes from Huckabee, the former Arkansas governor, who opposes three-strikes sentencing laws, saying they have "created a system that is overrun with people, and the cost is choking us." But the real dissident in the Republican race is Paul, the Texas libertarian, who opposes the death penalty, favors drug decriminalization and thinks the federal government has far too big a presence in law enforcement....
It's true that most crime is prosecuted locally. But any president can exert a powerful influence on crime policies by backing or blocking legislation on wiretapping, guns, corporate wrongdoing or defendants' rights; by appointing judges, the attorney general, U.S. attorneys, and members of agencies like the U.S. Sentencing Commission; and by deciding whether federal prosecutors should chiefly target gangs, drugs, pornography or securities fraud.
Crime is seldom a prominent issue in presidential primaries, largely because the front-runners in each party typically take similar positions. But the subject can explode on Democrats in a November election. The prime example was in 1988, when Massachusetts Gov. Michael Dukakis, who had led Republican Vice President George Bush in early opinion polls, came under withering attack for his support of a furlough program that allowed a convicted murderer named William Horton — dubbed "Willie" in campaign ads — to leave prison in 1986 and rape a Maryland woman.
Dukakis was also the last major-party nominee to oppose the death penalty. He was hurt politically when he responded without apparent emotion to a debate question about whether he would favor execution for someone who raped and murdered his wife. Bill Clinton, by contrast, interrupted his 1992 presidential campaign and flew back to Arkansas for the execution of a brain-damaged killer named Rickey Ray Rector. As president, Clinton signed a 1994 crime bill that included a major expansion of the federal death penalty; according to the New York Times, first lady Hillary Clinton lobbied fellow Democrats for that provision. Bill Clinton also signed a 1996 law restricting state prisoners' ability to appeal their convictions and sentences in federal court....
The Democrats' clearest differences involve sentencing for drug crimes, including the disparity between terms for crack cocaine offenses, which affect mostly black prisoners, and terms for powder cocaine, which affect mostly whites. When the Sentencing Commission voted in November to lower sentencing guidelines for crack-related crimes, and bring them closer to sentences for powder cocaine, Obama favored applying the new terms retroactively to current prisoners, while Clinton opposed it, saying the change should affect only future cases. The commission voted for retroactivity in December, allowing 19,500 federal inmates to ask judges for sentence reductions, about two years in most cases.
Clinton has also questioned Obama's proposal to scrap some of the more than 170 federal mandatory-minimum laws, which require judges to impose specified prison sentences, most commonly for drug crimes. Noting that the laws mostly affect minorities and have had many critics, including the late Supreme Court Chief Justice William Rehnquist, Obama has attacked them as unfair to defendants and unduly restrictive on judges, but he has stopped short of calling for a wholesale repeal. Instead, he promises to review all mandatory minimums and try to eliminate those he considers too harsh.
UPDATE: Over at TalkLeft, Jeralyn has this long post providing more perspective on these issues, and she concludes with this assertion:
To say Obama is more progressive on crime issues or that he takes the defense line while Hillary toes the prosecution line, is not accurate. Neither one is particularly progressive or defense oriented. Their minor differences are just that, minor.
Rather than debate labels here, I would rather concentrate on records. Throughout his Presidency, Bill Clinton showed to the right on crime to score political points (and this SFC article suggests Hillary Clinton played a key role in these moves). I was so disappointed by Hillary Clinton's recent stance on crack retroactivity because it revealed that she, too, was very ready and seemingly quite willing to sell-out principles (and criminal defendants) as part of a misguided effort to score political points. As the San Francisco Chronicle spotlights, it likely made a lot of political sense in 1992 for Bill Clinton to try to move the democrats to the right on crime issues. But, 16 years later, the modern dynamics of crime and politics have changed dramatically, and I think the country now desperately needs leaders who worry more about modern justice realities than about dated political rhetoric.
Is there no pressing non-sentencing business in South Dakota?
This local AP story has me wondering if the South Dakota legislature has solved all of the state's other pressing problems:
South Dakota House is scheduled to consider a measure Monday to eliminate an archaic judicial doctrine that wipes away criminal convictions if defendants die before they are sentenced.
Representative Rich Engels of Hartford says many states already have abandoned the nearly century-old doctrine. HB1271, offered by Engels, would add South Dakota to the list. He says the doctrine developed in common law out of the view that a criminal conviction is not complete until an appeal has been completed or the time to appeal has passed. Engels says approval of HB1271 would allow crime victims to continue their quest for restitution. Under the existing doctrine, restitution cannot be obtained if a criminal conviction is erased when someone dies before they are sentenced.
I understand the concern for victim restitution, but wouldn't a reform of tort law, rather than a a reform a sentencing law be a more appropriate way to address this concern?