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April 4, 2009

Potential Ohio AG candidate talking about speeding up capital appeals

On the heels of this week's official state report on Ohio's capital cases come this local news of a potential Ohio Attorney General candidate talking about his commitment to speed the path of condemned killers to the execution chamber:

Delaware County Prosecutor Dave Yost made an unofficial campaign stop for Ohio Attorney General Friday, telling fellow Republicans if he decides to run and is elected he would speed up the death penalty appeals process....

Yost hasn't officially declared his candidacy for Ohio Attorney General next year but it's a strong likelihood given the fact he's traveling the state speaking to groups such as local Republicans at its monthly lunch.

Yost said the death penalty process in Ohio is bogged down once cases get to federal court. The average time a person spends on death row is more than 13 years and more than 35 men have been on death row more than 20 years.

"Justice delayed is justice denied," he said. "We will push those appeals through to make sure the victims finally get justice." He vowed to beef up staff in the unit that fights appeals from death-row inmates.

Though this might seem like just a little local story, it provides a telling and important reminder that death penalty politics still have not changed all that much despite lots of capital repeal and reform movements around the nation. 

Ohio is not, of course, a southern state or a classic red state in which one might think that vocal support for the death penalty is a critical and classic way to garner votes and attention.  In addition, Ohio has had some innocence and lethal injection problems and has also executed more defendants that just about every state not named Texas in recent years.  And yet, despite all these forces, we still see a leading candidate for Attorney General actively campaigning that he will help speed up executions. 

Some recent related posts:

April 4, 2009 in Death Penalty Reforms | Permalink | Comments (8) | TrackBack

"We Deserve Our Lives Back"

The title of this post is the name of this website.  Here is its mission statement:

We Deserve Our Lives Back is a non-profit organization established to locate bills/laws that work in conjunction with second chance agencies in providing a re-entry plateau for ex-offenders.  Our mission is to reduce recidivism by conversing, petitioning and sharing information through media outlets.  Our efforts need your assistance, we are one, yet together we are many, who deserve to have our lives back.  Gainful and meaningful employment is a stepping stone but a career is what we strive to regain.  We don’t ask that you level the playing field, we just want the opportunity to play.

Here is the start of the text of an e-mail I received asking me to spotlight this website in conjunction with an effort to generate support for a federal bill to enable expungement of a federal conviction:

I am writing to solicit your organization's support on behalf of the thousands of young men and women who, having been convicted of a Federal Felony and, regardless of the sentence handed down by the courts and having “paid their debt to society”, are also being handed a hidden life sentence that is not a part of any judicial proceeding. There is currently no appeal process for this life sentence.

I am speaking of the first time, non-violent offender who, due to the current federal policy, must spend the rest of their lives bearing the stigma of a federal felony conviction. Some of these offenders are only sentenced to probationary periods of six to twelve months so little was their involvement. Yet they must suffer the same life sentence as one who committed a much more serious violent crime. This is not justice.

Under current federal law, punishment for a felony offense amounts to a life sentence even though the offender has supposedly “paid his full debt to society.” Most, if not all, states provide a path for the expungement of criminal records for non-violent offenders when certain requirements are met.... In the case of a federal charge, no such avenues exist. Once a person is convicted of a federal felony their record cannot be expunged, not even by Presidential pardon. This is one of the most unjust and unfair practices in this country. A first time, non-violent offender who has paid their full debt deserves a second chance....

Therefore I am asking that your organization support H. R. 1529 sponsored by Congressman Charles Rangel. Previous versions of this bill have been allowed to die in committee. This cannot be to happen again. This is one of the most human and humane pieces of legislation that I have ever seen. The positive impact of this bill is incalculable. It is only right and just that federal law also allow former offenders the ability to lead productive lives without the stigma of a felony conviction haunting and handicapping them for the rest of their life.

Please post a link on your site to "We Deserve Our Lives Back," where a petition may be signed in support of this bill.  Urge your members to follow this with personal letters, e-mail and phone calls to their individual representative. Contact information for all members of congress can be found at the following site. You may also contact your representative through this site.

The concept of “permanent punishment” with no hope of restoration for a non-violent first offender is void of any of the commonly held concepts of fairness.  Compassion and mercy should not be viewed as being “soft on crime.”

April 4, 2009 in Reentry and community supervision | Permalink | Comments (10) | TrackBack

"The Fall of the Presidential Pardon"

The title of this post is the title of this effective piece on modern federal clemency realities sent my way by a helpful reader.  Here are a few lengthy excerpts from a lengthy article that justifies a full read:

Although all recent presidents have granted few pardons, Bush's rate was exceptionally low. He tied with his father for the lowest-ever percentage of granted pardons (conviction reversals) — 9.8 percent — and he granted an astonishingly tiny number of requested commutations (shortened sentences): 0.012 percent....

[A]lthough Bush disappointed some guilty crony hopefuls with his meager list of pardons and commutations, he disappointed a far greater number of long-serving prisoners with no other hope of release.  An ever-growing percentage of the US's 2.3 million prisoners — including more than half of the 200,000 inmates in federal prison - are drug offenders, many of them charged on vague counts of "conspiracy."  Since parole was abolished on the federal level in 1987, drug prisoners serving drastic sentences are told to apply for a presidential pardon: It's their only option....

With the stingy-pardoning Bush era in the past, many nonviolent lifers see the advent of the Obama presidency as a ray of hope.  His message of change and his immediate action toward closing the military prison at Guantanamo Bay are optimistic signs for Danielle Metz, a first-time nonviolent offender serving three life sentences plus 20 years for cocaine conspiracy.... As the Obama administration comes into its own, federal prisoners and justice policy experts alike are hoping he'll resurrect the presidential pardon, returning it to its intended place as a critical piece of the grand puzzle of the judicial system....

Although there have been a smattering of clemency grants for drug offenders in recent years, they don't add up to a policy statement disavowing the drug war — in fact, they may do the opposite, according to Tom Murlowski of the November Coalition, a nonprofit organization that combats drug war injustice.  Murlowski points to President Clinton, who commuted the sentences of 22 drug offenders on his last day in office, following up on a handful of previous drug-related clemency grants.

"There were thousands of cases as deserving, or more so, than the few that got released, and most of those drug offenders released were those that had some solid media support behind them — they had virtually all been featured in mainstream media in some way," Murlowski told Truthout.  "Our fear was that, when these few stories were featured and, ultimately commuted, it sent the erroneous message that these were isolated cases of drug war injustice, when the reality was a systemic injustice as a result of fundamentally flawed policies."...

Another little-noted factor has contributed to the dearth of recent pardons: The Office of the Pardon Attorney has long been underfunded and understaffed.  Clemency and pardon requests go through several steps before they reach the president — they must be investigated by government agencies, then reviewed by the pardon attorney, the attorney general and finally the president — and qualified support personnel at each of these levels is essential.

According to Marc Mauer, executive director of The Sentencing Project, more pardons might be granted if the department was simply funded adequately. "There's been a huge backlog under the [Bush] administration, which is basically a resource issue; not providing sufficient staff to review applications," Mauer told Truthout.

Instead of prompting more hires, the backlog has perpetuated a shoddy, negligent review process, according to former Pardon Attorney Love.  "These cases are not getting fully reviewed," Love told Truthout.  "It seems like the main objective of the current pardon attorney is to manage the backlog by getting rid of cases as soon as he can; turning them around at the door.  I've heard he's not even getting the pre-sentence report in most cases."

Compounding the situation, the pardon attorney in office for the past 10 years was known for discriminatory behavior, and was recently removed from office following accusations of racism.  A report by the department's inspector general stated that Pardon Attorney Roger Adams described a drug offender requesting a pardon as "about as honest as you could expect for a Nigerian.... Unfortunately, that's not very honest."

According to the inspector general's report, "Adams' comments — and his use of nationality in the decision-making process — were inappropriate." Considering most long-serving drug offenders are minorities, Adams's behavior calls into question the handling of the entire pardon evaluation process in recent years.

Some related posts:

April 4, 2009 in Clemency and Pardons | Permalink | Comments (0) | TrackBack

April 3, 2009

"Release of sex offenders delayed"

The title of this post comes from the title of this new entry at SCOTUSblog.  Here are the particulars from the start of a long and effective post by Lyle Denniston:

Chief Justice John G. Roberts, Jr., put on hold on Friday a federal appeals court ruling that the federal government contended would lead to the early release of “the great majority” of “sexually dangerous” inmates now held in federal prison.  In a brief order, the Chief Justice said there was “a presumption of constitutionality” of the 2006 federal law that the Fourth Circuit Court struck down.  He thus blocked temporarily the Circuit Court ruling, until the Justices act on a new government appeal filed Friday (U.S. v. Comstock, et al., 08-1224).

Roberts took little time to act. The Justice Department in the morning asked for a delay of the appeals court decision, but also sought an “immediate, interim” stay while its request was awaiting the Chief Justice’s reaction. Roberts, without seeking a response from the challengers to the federal law, by late afternoon issued his order fully staying the Circuit Court.

Related post:

April 3, 2009 | Permalink | Comments (6) | TrackBack

While New York "drops the rock," one state senator ups the rhetoric

As detailed in this local article, not everyone in New York is happy with the state legislature's decision to reform the Rockefeller drug laws.  Specifically, as explained in this official press release, state Senator Joseph Griffo is reiterating "his warning that a provision in the current State Budget agreement will endanger public safety":

The agreement would drastically roll back the ‘Rockefeller Drug Laws’ to potentially allow 5,000 – 8,000 drug dealers back onto the street.  “I’m terribly disappointed that the Senate Majority decided to hide this initiative in the State Budget,” said Senator Griffo. “Rather than putting it in a separate measure that could be discussed and debated, we’re fast-tracking what will be an added hindrance to law-enforcement and will negatively affect communities in New York.”

“The Association of District Attorneys, the people who are out in front of prosecuting drug dealers, have said that this is a poor public policy decision,” Griffo added, “We’re opening a Pandora’s Box that will allow drugs to become a greater scourge to communities and families.”

April 3, 2009 in Drug Offense Sentencing | Permalink | Comments (7) | TrackBack

"Michael Vick says prison gave him time to think"

The title of this post is the headline given by my local paper to this AP article about Michael Vick's comments to a bankruptcy court today.  Here's more from the article, which includes some interesting reentry aspects:

Suspended NFL star Michael Vick told a bankruptcy court on Friday that his time in prison has given him a chance to think, and he's realized he needs to make some changes. The ex-Atlanta Falcons quarterback, who is serving a 23-month prison sentence for bankrolling a dogfighting operation, said he knows he committed a "heinous" act that was very irresponsible.

"I can't live like the old Mike Vick," he told a courtroom filled with his family, friends and fiancee. "I was very immature. I did a lot of things I wasn't supposed to do being a role model."

In prison, he's filled his days by reading, writing, playing basketball and working a 12-cent-an-hour job as a janitor, he said. The experience has given him a chance to develop he called "an exit strategy."...

Vick is expected to be released from custody in July, and traveled from a federal prison in Kansas to attend the hearing. He could be transferred to home confinement at his eastern Virginia home by late May, and his agent testified Thursday that he hopes Vick can return to the NFL by September....

When he is sent to home confinement, Vick will have a 40-hour-a-week, $10-an-hour job at one of W.M. Jordan Co.'s 40 commercial construction jobs, said John Robert Lawson, whose father helped start the Newport News company.

Lawson, 57, said that he has known Vick for more than 10 years and that they have been involved in charitable work together. He said Vick's representatives approached him when the former hometown hero was turned away by other employers. "I believe all of us make mistakes, and once you've fulfilled your commitment and paid the price, you should be given a second chance," Lawson said in a telephone interview. "He's not a bad person. He made some bad choices."

April 3, 2009 in Celebrity sentencings | Permalink | Comments (2) | TrackBack

Deep thoughts about post-Booker sentencing and sources of law

Professor Mark Osler, whose tendency toward deep and provocative sentencing thoughts are exemplified by his recent book"Jesus on Death Row: The Trial of Jesus and American Capital Punishment," has a fascinating new article now available here via SSRN.  The piece is titled "Seeking Justice Below the Guidelines: Sentencing as an Expression of Natural Law," and here is the abstract:

Even though there are strong personal incentives against it, federal judges abandon the sentencing guidelines in about one-third of all cases.  Shockingly, when they sentence outside of the range, 96% of the time the sentence is below the range rather than above.  Looking to both traditional descriptions of natural law and the use of natural law within American history, the author argues that this tendency can be seen as a natural law impulse, and one that ultimately will undermine limitations on sentencing discretion in the form of guidelines.

April 3, 2009 in Booker and Fanfan Commentary | Permalink | Comments (3) | TrackBack

State execution team resigns due to lethal injection litigation

At least in Washington state, it appears that when the litigation going gets tough, the not-so-tough resign.  That's what I take away from this local story, headlined "State's execution team resigns, fearing identities would be revealed."  Here are the basics:

Four people who have volunteered to administer lethal injections to death-row inmates at the Washington State Penitentiary in Walla Walla quit their positions this week, apparently worried that their identities could become public as a result of an ongoing court case to decide whether lethal injection constitutes cruel and unusual punishment.

 The four resigned Tuesday, which was the deadline Thurston County Superior Court Judge Chris Wickham had set for the team's records -- detailing the members' credentials, qualifications and experience in administering lethal drugs -- to be submitted for his review.  The state is now without a lethal-injection team, and it's unclear what effect the resignations will have on the court proceedings.

Death-row inmate Darold Stenson, who was sentenced to die in 1994 for killing his wife and business partner, filed his lawsuit last year, claiming that lethal injection can result in excruciating pain if not administered correctly....

The resignations are "a surprising and disturbing development," said Scott Englehard, the attorney representing Gentry. "This issue has nothing to do with guarding their identities." Englehard said the plaintiff's attorneys already agreed that no identifying information related to the team members would be disclosed.  The records were to be reviewed in camera, a time-honored legal tradition in which only a judge sees sensitive and confidential documents and then decides what information attorneys will be privy to, he said.  His client and the other plaintiffs have a right to inquire about the team's "experience or qualifications to properly carry out a lethal-injection execution," Englehard said.

This development reminds me of the practical impact that sometimes occurs from another kind of right-to-life protesting: the tendency of medical professions to stop being involved with abortions because of fear generated by protesters.  The passion of death penalty opponents often is similar to the passion of abortion opponents, and I sense that any persons involved with either the death penalty or abortions have a reasonable basis to fear that this passion may sometimes get expressed in disturbing ways.  For this reason, I have a hard time faulting the decision by these volunteers to resign, even though I still believe the slogan that quitters never prosper.

April 3, 2009 in Death Penalty Reforms | Permalink | Comments (20) | TrackBack

Ohio ACLU writes to local lawmakers and prosecutors about sexting

This local piecereports on an interesting sexting developing in Ohio: "The American Civil Liberties Union of Ohio sent letters to all county prosecutors and members of the Ohio General Assembly today, calling on them to respect sex offender laws and the role of law and not impose heavy-handed charges on 'sexting' teens."  Here is more from this ACLU press release:

ACLU of Ohio Legal Director Jeffrey Gamso said, “Child pornography laws were created to protect child victims from adults who prey on them. In sexting cases, the victim is often also the perpetrator who originally distributed the photo. Local officials are twisting the law to prosecute those they were meant to protect. ”

“A conviction for sexting can do far more than teach a lesson — it can ruin a life. Teens found to have committed a felony or labeled a sex offender could be barred from certain jobs and educational programs, required to register for years with local law enforcement and have restrictions on where they may live. While teens should be educated on the consequences of distributing nude photos, imposing these harsh punishments will only further harm young lives.” added Gamso.

This page at the ACLU of Ohio website also provides links to the letter to County Prosecutors and to the letter to members of the Ohio General Assembly.

Some recent related posts:

April 3, 2009 in Sex Offender Sentencing | Permalink | Comments (0) | TrackBack

April 2, 2009

Split Ninth Circuit reverses (yet again) the prison sentence in unique Paul case

Those who follow post-Booker reasonableness review (too) closely may recall that the Ninth Circuit's unpublished decision in US v. Paul, No. 06-30506 (9th Cir. Aug. 17, 2007) (available here, bogged here), is the only within-guideline sentence reversed as substantively unreasonable.  The Paul case, after resentencing, led to another notable ruling by the Ninth Circuit today in US v. Paul, No. 08-30125 (9th Cir. April 2, 2009) (available here).  Here is how the per curiam majority opinion starts:

 In United States v. Paul, 239 Fed. App’x 353 (9th Cir. 2007) (Paul I), we held that a 16-month sentence imposed on Patricia Betterman Paul for theft from a local government receiving federal funding, a violation of 18 U.S.C. § 666(a)(1)(A), was unreasonable.  Id. at 354. We viewed her case as one that did not fall within the “heartland” of cases to which the Federal Sentencing Guidelines are most applicable, as contemplated by Rita v. United States, 551 U.S. 338, 127 S. Ct. 2456, 2465 (2007) (a court may decide “that the Guidelines sentence should not apply, perhaps because . . . the case at hand falls outside the ‘heartland’ to which the Commission intends individual Guidelines to apply”); cf. United States v. Mohamed, 459 F.3d 979, 987 (9th Cir. 2006) (“any post Booker decision” as to whether a case falls within the heartland “is subject to a unitary review for reasonableness”), and allowed by Gall v. United States, ___ U.S. ___, 128 S. Ct. 586, 595 (2007) (rejecting “an appellate rule that requires ‘extraordinary’ circumstances to justify a sentence outside theGuidelines range”).  We vacated the sentence and remanded for resentencing, pointing to four specific mitigating factors that demonstrated the 16-month sentence was unreasonably high.  Paul now appeals the subsequent sentence of 15 months that the district court imposed upon remand. This case presents the question whether a district court can disregard the spirit and express instructions of an appellate court’s mandate to reconsider an unreasonable sentence.  We once more vacate Paul’s sentence, and remand to a different judge for resentencing.

Here is how a lengthy dissent by Judge Hall gets started:

Under the guise of the rule of mandate, the majority seeks to insulate this court’s previous unpublished disposition from intervening Supreme Court and Ninth Circuit precedent. In so doing, the majority demonstrates a complete disregard for the appropriate roles of the sentencing judge and the appellate court.

April 2, 2009 in Booker in the Circuits | Permalink | Comments (14) | TrackBack

Former Illinois Gov Blagojevich (finally) indicted by feds

As detailed in this New York Times report, former Gov Blagojevich is now officiall defendant Blagojevich.  Here are some of the particulars:

Rod R. Blagojevich, this state’s ousted governor, was charged on Thursday with 16 felony counts, among them racketeering conspiracy, wire fraud and extortion conspiracy in a wide-ranging scheme to deprive residents of “honest government,” prosecutors said, including trying to leverage his authority to pick someone to fill President Obama’s former Senate seat.

Five of his closest advisers, including his brother, Robert, a top fundraiser, and two former chiefs of staff, were also charged in the 19-count indictment.

Prosecutors said Mr. Blagojevich used numerous elements of his state work — including appointing people to state boards, investing state money and signing legislation — as a way to seek money, campaign contributions and jobs for himself and others.

April 2, 2009 in Celebrity sentencings | Permalink | Comments (0) | TrackBack

Sixth Circuit vacates sentence for lack of adequate explanation

Though very few post-Gall appeals lead to reversals of sentences as substantively unreasonable, we are still getting a reasonable number of opinions concluding that a district court has failed to adequately explain the reasons for the sentence it has imposed.  The Sixth Circuit today, for example, in US v. Gapinski, No. 08-1193 (6th Cir. April 2, 2009) (available here), demands a redo because "the record does not show that the district court considered and explained its reasons for rejecting Gapinski’s nonfrivolous argument for a lower sentence based upon substantial assistance to the government."

April 2, 2009 in Booker in the Circuits | Permalink | Comments (1) | TrackBack

New report on drug courts from The Sentencing Project

I received news of an important new report on drug courts from The Sentencing Project.  Here is the text of the e-mail I received about the report:

The Sentencing Project is pleased to announce the publication of a new report, Drug Courts: A Review of the Evidence, that assesses the impact of the drug court movement.
Since their introduction in 1989, drug courts have received a significant amount of attention by practitioners, policymakers, and the general public.  Originally conceived as an alternative to incarceration for persons convicted of low-level drug offenses, there are now more than 1,600 drug courts nationally, covering all 50 states.  Many of these programs have broadened their eligibility requirements to grant more individuals access to treatment rather than incarceration.  In the two decades since their launch, a substantial body of literature has been established evaluating drug court efficacy in regard to reducing recidivism and criminal justice costs.
To mark the 20-year anniversary of the modern drug court, The Sentencing Project surveyed a wide-range of research to outline general findings on the operation and efficacy of drug courts, and to highlight benefits and potential concerns.  Overall, we find that:

  • Drug courts have generally been demonstrated to have positive benefits in reducing recidivism.
  • Evaluations of the cost-effectiveness of drug courts have generally found benefits through reduced costs of crime or incarceration.
  • Concern remains regarding potential "net-widening" effects of drug courts by drawing in defendants who might not otherwise have been subject to arrest and prosecution.

April 2, 2009 in Drug Offense Sentencing | Permalink | Comments (2) | TrackBack

President Obama nominates two more district judges to serve as circuit judges

As detailed in this official press release, "President Obama today announced his intent to nominate Judge Gerard Lynch for a seat on the United States Court of Appeals for the Second Circuit and Judge Andre Davis for a seat on the United States Court of Appeals for the Fourth Circuit."  As this announcement suggests, both nominees have previously been confirmed for federal judgeships: Judge Lynch now serves on the US District Court for the Southern District of New York and Judge Davis now serves on the US District Court for the District of Maryland.

Serious sentencing fans should already know Judge Lynch's name.  He has authored more than a few important sentencing opinions (see, e.g., blog entries here and here and here).  He has also written a number of terrific sentencing articles, both from the bench and from the academy before he became a judge.  Here are links to some of his more recent sentencing writings:

April 2, 2009 in Who Sentences? | Permalink | Comments (6) | TrackBack

Interesting new paper on Baze and lethal injection litigation

A helpful reader pointed me to this new paper appearing on SSRN titled "Bazed and Confused: Lethal Injection, the Eighth Amendment, and Plurality Opinions."  Here is the abstract:

For over six months, from October 2007 to April 2008, there was a de facto moratorium on all executions while state and lower federal courts waited for the Supreme Court to assess the propriety of lethal injection protocols under the Eighth Amendment.  Unfortunately, the Supreme Court proved incapable of achieving even minimal consensus as to the interplay between the Eighth Amendment and lethal injection procedures.  Chief Justice Roberts's plurality opinion in Baze v. Rees, which purports to provide a framework for use by lower courts evaluating the constitutional propriety of local lethal injection protocols, garnered the votes of only three justices. Far from resolving the lethal injection dispute, Baze leaves the individual states and lower courts to quarrel over the weight and precedential value to be accorded to the case's seven separate opinions. This Article addresses the fact the Court's jurisprudence regarding plurality opinions -- the Marks rule -- is frustratingly indeterminate in its application to any case, and antithetical to the Eighth and Fourtheenth Amendments in the context of capital cases.

This is the first article to critique the unchallenged assumption that plurality opinions, such as Baze, generate reliably binding precedent in the context of capital appeals.  Building on an established literature regarding the heightened importance of procedural regularity in the context of capital cases, this Article argues that the Court's current framework for discerning constitutional rules from plurality opinions-the Marks rule-has proven incapable of reliable and regular application, and therefore, must be revisited by the Court.  After demonstrating the need for a clarifying standard regarding the application of plurality opinions in the capital context, this Article reflects on what a reformed approach to plurality precedent should look like.  To this end, the second major premise of the Article is that although a variety of standards may produce the sort of regularity that is currently lacking in the context of plurality opinions, not every formula for discerning a holding from a plurality decision is consistent with the consensus and legitimacy concerns that lie at the heart of modern Eighth Amendment jurisprudence.  Specifically, by directing attention to the oft-ignored, but longstanding, circuit split regarding the scope and application of plurality opinions, this Article calls for a re-examination of doctrines that would allow non-consensus based rulings to define the contours of Eighth Amendment law.  In short, this Article addresses the intersection of plurality opinions, the death penalty, and the Eighth Amendment, and prescribes a two-tier inquiry for resolving the ambiguity that surrounds the Marks rule in this context.

April 2, 2009 in Death Penalty Reforms | Permalink | Comments (6) | TrackBack

Good timing for a message-sending tax fraud sentence!?!

As detailed in this AP article, a federal district judge "saying he wanted to send a message to "quick-buck artists," handed down stiff sentences Wednesday to two former executives and a lawyer with accounting firm KPMG for helping rich people evade more than a billion dollars in taxes."  Here are more details:

U.S. District Judge Lewis Kaplan sentenced former KPMG executive John Larson to more than 10 years in prison; a fellow executive, Robert Pfaff, received more than eight years. 

The judge said Larson, 57, and Pfaff, 58, were "centrally involved" in the brazen tax shelter scheme "that didn't pass the smell test from Day 1." He gave lawyer Raymond Ruble, 63, a term of 6 1/2 years in prison.  The judge said he hoped the sentences "will say to quick-buck artists, 'Not so fast.'"

The men were convicted in December of multiple counts of tax evasion.  The government alleged they used tax shelters marketed by KPMG LLP to help wealthy clients make it appear they sustained large tax-deductible losses by getting loans for business ventures when they had not.

I do not know if this sentencing was consciously scheduled to come only two weeks before federal income taxes are due, but it does seem like an especially good time to send a message to would-be tax cheats.

April 2, 2009 in White-collar sentencing | Permalink | Comments (1) | TrackBack

April 1, 2009

A message for Prez Obama and his legal team from his favorite Justices

The most interesting jurisprudential aspect of today's Supreme Court decision in Harbison (basics here) is probably the splitting (and spitting) among the more conservative justices about how best to interpret 18 U.S.C. § 3599.  But while experts in the academy reflect on the statutory interpretation dissensus in Harbison, I hope that policy-makers in the White House reflect on the clemency consensus reflected in this paragraph toward the close of the majority's opinion:

The Government’s arguments about §3599’s history and purposes are laced with the suggestion that Congress simply would not have intended to fund clemency counselfor indigent state prisoners because clemency proceedings are a matter of grace entirely distinct from judicial proceedings.  As this Court has recognized, however,“[c]lemency is deeply rooted in our Anglo-American tradition of law, and is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted.”  Herrera v. Collins, 506 U. S. 390, 411–412 (1993) (footnote omitted).  Far from regarding clemency as a matter of mercy alone, we have called it “the ‘fail safe’ in our criminal justice system.” Id., at 415.

As regular readers know, I have long been troubled by the failure of modern Presidents to make serious and sensible use of their clemency power, especially during a period in which thousands of federal defendants can and have made reasonable requests for the exercise of this "historic remedy."  And, given all the campaign talk of hope and change (and asserted concern for offender reentry and unjust sentencing disparities), I have been especially disappointed that President Obama is now closing in on the back end of his first 100 days in office without having yet granted a single clemency.

Sadly, I have to doubt that this effective little dicta in Harbison will finally get the new President and his legal team moving in the right direction when it comes to the use of the clemency power.  Still, one can at least hope that the sound clemency sentiments expressed by the Justices in Harbison will echo in some other branches.

Some related posts:

April 1, 2009 in Clemency and Pardons | Permalink | Comments (2) | TrackBack

Ohio's death row getting smaller (though new AG still laments pace of appeals)

Ohio law requires the state Attorney General to produce an annual report that details the status of all individuals sentenced to death in the state.  As detailed in this official press release, the 2008 report was released today and can be accessed here.  Helpfully, this local article provides some of the intriguing data highlights from the nearly 300-page report:

Ohio's Death Row, once bulging with more than 200 condemned killers, is shrinking due to both executions and successful legal appeals.  The annual Capital Crimes Report released today by Attorney General Richard Cordray showed that 15 people got off Death Row last year. 

Only two of them, Richard Wade Cooey II and Gregory Bryant-Bey, were executed. A third, James Taylor, died of natural causes. Kenneth Richey was released as a result of a plea bargain.  Of the remaining 11 cases, two inmates had their death penalty sentences overturned and the others were sent down to lower courts for re-sentencing or new trials, Cordray's report showed.

At the same time, just three new death sentences were imposed statewide, one each in Mahoning, Summit and Wood counties.  Lower numbers are a continuing trend.  While there were 53 death sentence imposed between 2000 and 2008, more than twice that many, 123, were imposed from 1990 through 1999....

Cordray reported that 28 capital cases are pending in the state court system, with 118 pending in federal courts. That compares with 44 and 136, respectively, a year ago.  Ohio has executed 28 men since resuming capital punishment in 1999 after a 36-year hiatus....

About half of all inmates on Death Row are black, with 45 percent white and about 4 percent another race.  The average age of the condemned men, plus one woman, is 44.7 years.  The average time spent on Death Row is 13.6 years.  Of 245 murder victims, roughly half were women, 20 percent were children and two-thirds were white, according to the report.

Thanks to this post at Law Dork 2.0, I see that Ohio's new Attorney General, Rich Cordray, decides to keep up a venerable Ohio AG tradition of complaining about the pace of capital appeals.  This AP article has the details:

Ohio Attorney General Richard Cordray says the death penalty appeals process is still too long and sometimes defeats the possibility of justice being done.  Cordray tells The Associated Press on Wednesday that, even if lengthy appeals result in a new trial, it’s difficult to feel justice can be achieved because so much has changed over time.

Cordray also says it’s a bogus argument to say the death penalty should be eliminated because cases take too long and cost too much.

I have a feeling that Ohio AG Cordray did not use the word "bogus" to describe abolitionist arguments based on the costs of capital cases.  Still, it is interesting and notable that a Democratic AG in a (solidly blue?) northern state is apparently complaining about lengthy appeals and seems eager to reject a death penalty repeal argument that has become quite popular of late.

April 1, 2009 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

NFL receiver charged with DUI manslaughter in Florida, while MLB pitcher gets wrist slapped in Nebraska

This AP report has the latest news in yet another high-profile case which will allow me to follow more sentencing news through the sports pages.  Here are the basics involving the latest NFL star to be looking at real prison time:

Cleveland Browns wide receiver Donte Stallworth was charged Wednesday with killing a pedestrian last month while driving drunk in Miami.

An arrest warrant charging Stallworth, 28, with DUI manslaughter was filed in the March 14 accident that killed 59-year-old Mario Reyes.  If convicted, Stallworth would face a maximum 15-year prison sentence.

Stallworth's blood-alcohol level after the crash was .126, well above Florida's legal limit of .08, according to results of a blood test.  Stallworth will also be charged with DUI, which carries a possible six-month sentence plus fines and community service for first offenders.

In somewhat related news, the AP reports here on another famous professional athlete getting only slapped on the wrist for DUI because he was lucky enough to avoid running over anyone (this time):

New York Yankees pitcher Joba Chamberlain pleaded guilty Wednesday to a Nebraska charge of drunken driving and was given probation.  After a plea deal, prosecutors dropped the second charge of driving with an open alcohol container.

Chamberlain, 23, played for Nebraska in college.   He was pulled over Oct. 18 by police on the outskirts of Lincoln. Authorities say his blood-alcohol level was 0.134 percent. The legal limit in Nebraska is 0.08 percent....

He'll also pay a $400 fine, lose his license for 60 days and complete an alcohol education class.

Some related posts:

April 1, 2009 in Celebrity sentencings | Permalink | Comments (11) | TrackBack

Split First Circuit ruling on upward departure based on conduct underlying vacated state convictions

Regular readers might recall long-ago posts here and here about a brouhaha in Massachusetts concerning the practice of some state judges being willing to vacate prior state conviction in an effort to impact federal sentencing realities.  Today, these issues became the focal point of a split First Circuit ruling in US v. Marsh, No. 07-1698 (1st Cir. April 1, 2009) (available here).  Here is how the majority opinion in Marsh gets started:

Matthew Marsh ("Marsh") pled guilty to three counts of distributing and conspiring to distribute crack cocaine. He was sentenced to a total of eleven years' imprisonment. The sentence was comprised of a statutory mandatory minimum of ten years and an additional year resulting from an upward departure from the applicable Sentencing Guidelines range.  The departure was based on conduct underlying certain state-court convictions that had been vacated less than two weeks prior to Marsh's federal sentencing.  This appeal is limited to Marsh's claim that the one-year upward departure was improper, and thus that his sentence was unreasonable.  We affirm, and in so doing, we reject the dissent's view that the district court impermissibly considered the conduct underlying the vacated convictions.

April 1, 2009 in Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack