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April 13, 2009

DOJ trying to identify "victims" of serious identity fraud sentencing snafu

Perhaps readers with a literary bent can help me figure out whether this story reported by Marcia Coyle in the National Law Journal reads more like a tale from Dickens or Kafka or Orwell.  Here are the basics:

The Department of Justice, working with federal courts and U.S. attorney offices, is trying to identify an unknown number of criminal defendants incorrectly convicted and sentenced under the felony provisions of a federal identification fraud statute instead of its misdemeanor provisions.

At the end of last year, Kenneth Melson, director of the Executive Office for U.S. Attorneys, notified the Administrative Office of the U.S. Courts that some defendants who have been convicted of possessing false, stolen, or unlawfully produced identification documents, in violation of 18 U.S.C. 1028(a)(4) or (6) of the identification document fraud statute, may have been incorrectly sentenced under that statute's felony penalty provisions, instead of the misdemeanor penalty provisions....

Melson explained that some U.S. attorneys' offices erroneously cited the felony penalty provisions in their indictments or plea agreements.  As a result, some defendants may have been sentenced to longer terms of imprisonment than they would have been subject to under the misdemeanor penalty provision.  In addition, the incorrect characterization of some offenses as felonies may have resulted in improper convictions for aggravated identity theft under 18 U.S.C. 1028A(a).

The problem was revealed by a U.S. attorney's office examining potential charges in a new case, according to Ian McCaleb, senior public affairs specialist for the department's Criminal Division. The department determined that two provisions in the law providing for increased penalties when the offense is the production, transfer or use of false, stolen or unlawfully produced identification documents do not apply to two other provisions of the act that criminalize the possession of false, stolen or unlawfully produced identification documents....

In cases in which judgment has become final, the department instructed U.S. attorneys to try to identify all defendants who may have received improper sentences or felony designations and are currently incarcerated, on probation, or on supervised release.  The Executive Office has been working with the Bureau of Prisons, the AO and the U.S. Sentencing Commission, to find ways to identify adversely affected defendants, according to McCaleb.

Letters were to be sent to district courts and federal public defenders about the issue.  Individual notices were to be sent to defendants who may have been affected, or their counsel. The Executive Office also sent case, sentencing and incarceration data to each district to assist the district in identifying cases which may have involved improper sentences....

McCaleb said ... the Executive Office is aware that motions for relief have been filed by defendants in nine districts.  A total of 39 defendants have filed motions. In one additional district, a court has entered orders on its own initiative in three cases.  Seven additional districts have sent notices to affected defendants, but no motions have been filed.

April 13, 2009 in Offense Characteristics | Permalink | Comments (27) | TrackBack

Vermont legislature considering "sexting exception" to child porn prohibitions

The Burlington Free Press had this recent coverage of the latest notable "sexting" legal development. The article is headlined "Legislature considers legalizing teen 'sexting': Bill would exempt teens from child-porn laws for consensual image exchange," and starts this way:

Vermont’s Legislature is considering a bill that, if approved, would make the state one of the first in the nation to grant legal protections to teenagers who send sexually explicit photos and videos to one another with their cell phones.

The law change is receiving widespread support from prosecutors, defense attorneys, law enforcement, women’s groups and others.  Still, some advocates are questioning whether the proposal crosses the line between legalizing a common practice among teens experimenting with sexuality and protecting predators who target and exploit youngsters.

Some recent related posts:

April 13, 2009 in Sex Offender Sentencing | Permalink | Comments (9) | TrackBack

Eleventh Circuit rejects arguments for a right to counsel at crack sentence modification proceedings

Addressing an interesting right to counsel issue, the Eleventh Circuit today in US v. Webb, No. 08-13405 (11th Cir. April 13, 2009) (available here), concludes that "there is no statutory or constitutional right to counsel for a § 3582(c)(2) motion or hearing [and thus] the decision to appoint an attorney is left to the discretion of the district court."  I believe that this Webb ruling is the first circuit decision on this right to counsel issue in the application of the US Sentencing Commission's recent reduction of crack guideline sentences, but the Eleventh Circuit says that other circuit have come to the same conclusion in earlier decisions:

The notion of a statutory or constitutional right to counsel for § 3582(c)(2) motions has been rejected by all of our sister circuits that have addressed the issue, and we agree with this consensus.  See United States v. Legree, 205 F.3d 724, 730 (4th Cir. 2000); United States v. Tidwell, 178 F.3d 946, 949 (7th Cir. 1999); United States v. Townsend, 98 F.3d 510, 512–13 (9th Cir. 1996) (per curiam); United States v. Whitebird, 55 F.3d 1007, 1010–11 (5th Cir. 1995); United States v. Reddick, 53 F.3d 462, 464-65 (2d Cir. 1995).  As the Fifth Circuit noted, a § 3582(c)(2) motion “is simply a vehicle through which appropriately sentenced prisoners can urge the court to exercise leniency to give certain defendants the benefits of an amendment to the Guidelines,” rather than “a challenge to the appropriateness of the original sentence.” Whitebird, 55 F.3d at 1011.  A defendant bringing such a motion thus would not be eligible for the Sixth Amendment rights that would normally attach in a sentencing or resentencing hearing. See id.; see also Townsend, 98 F.3d at 512–13 (agreeing with Whitebird’s rationale).  Additionally, we decline to find that the Fifth Amendment provides a mandatory right of counsel for all § 3582(c)(2) motions as a matter of fundamental fairness. The Federal Rules of Criminal Procedure permit courts to hold § 3582(c)(2) hearings without defendants being present. See Fed. R. Crim. P. 43(b)(4). Since we have found that the rights afforded under Rule 43 are at least as broad as those from Fifth Amendment due process, a defendant has no right to be present at such a hearing, and thus there would be no automatic Fifth Amendment right to counsel.

A footnote at the end of this discussion adds this important point that may help mitigate the practical impact of this ruling in many settings:

We note that courts have the discretion to appoint counsel.  See Whitebird, 55 F.3d 1011.  Given the array of factors that courts now must consider in deciding whether to reduce a sentence under § 3582(c)(2), there may be instances in which equitable concerns would make the appointment of counsel appropriate to ensure a just outcome.  See United States v. Robinson, 542 F.3d 1045, 1052 (5th Cir. 2008) (appointing counsel in § 3582(c)(2) proceeding “in the interest of justice” and noting that the “new complexities” created by changes to the sentencing guidelines might necessitate reconsideration of whether there should be a statutory or constitutional right to counsel in all such cases).

April 13, 2009 in Implementing retroactively new USSC crack guidelines | Permalink | Comments (2) | TrackBack

Effective examination of juve LWOP problems in Michigan

This local article, headlined "As bill to ban life imprisonment for children languishes, inequities of defense persist," provides an effective review of Michigan's story of sentencing juvenile offenders to extreme prison terms.  Here are excerpts (which include helpful links):

As legislation to end juvenile-life-without-parole sentences in Michigan remains stalled in the Senate Judiciary Committee, some court watchers are warning that the controversial sentence may not be in tune with recent public opinion and is not applied fairly by the justice system.

Currently, nearly 350 people in the state are serving life sentences for crimes committed when they were age 17 or younger. Seventy percent of them are African American, according to the state’s Department of Corrections.

Michigan, which currently spends approximately 20 percent of it’s general budget on corrections, has the third-highest number of inmates serving juvenile-life-without-parole sentences, according to a 2005 study by the Wayne State University School of Social Work.  Wayne State’s study surveyed public sentiment on juvenile crime and punishment and found that a majority did not support juvenile-life-without-parole sentences....

When juveniles are facing charges that carry a life sentence, they are especially dependent on legal counsel in a state that has one of the most under-funded public defender systems in the country. A recent report by the National Legal Aid and Defender Association done in cooperation with the State Bar of Michigan found that the lack of state funding, standards and oversight leads to inadequate public defense locally where counties often lack the resources to provide adequate support for those who can’t afford an attorney....

According to an American Civil Liberties Union of Michigan report, “Second Chances: Juveniles Serving Life Without Parole in Michigan,” the rate of juvenile-life-without-parole sentences varies widely among Michigan counties.  Between 1990 and 2000, the counties with the highest rate of this sentence were Saginaw, Calhoun and Berrien counties. According to the U.S. Census Bureau, Saginaw and Berrien rank among the top 25 most segregated metropolitan areas in the country.

The ACLU of Michigan report on juvenile LWOP sentences is available at this link.  The ACLU report is now a few years old, but this more recent letter on the topic from the folks at Human Rights Watch suggests that not much has changed in the state since the report was issued.

Some related posts on juve LWOP:

April 13, 2009 in Scope of Imprisonment | Permalink | Comments (2) | TrackBack

"Man with weapons cache appealing on Second Amendment"

The title of this post is the headline of this local article reporting on a notable federal gun case from Connecticut.  Here are the basics:

A Berlin man convicted in federal court on two dozen weapons charges will pursue an appeal based on a judge’s denial of his second-amendment rights, his attorney said. Alan Zaleski, 47, formerly of 863 Shuttle Meadow Ave., is facing 10 years in federal prison for each count when he is sentenced in June.  He was indicted by a grand jury in 2007 after Berlin police, with the help of other departments, found a huge stash of weapons in August 2006 on his booby-trapped property.

Attorney William Koch Jr., representing Zaleski, said he’ll likely mount an appeal based on a federal judge’s decision to not allow him to introduce arguments that his client considered himself part of the state’s “unorganized militia.”...  During a three-day search of the property, Berlin and New Britain police found dozens of machine guns and semi-automatic firearms, multiple handguns and rifles, silencers, three types of grenades, pipe bombs and IEDs — improvised explosive devices — and 67,000 rounds of ammunition....

Koch said U.S. District Court Judge Ellen Bree Burns improperly denied him the chance to present Zaleski’s views on the militia and his belief that the Bible accepts violence, including the possession of weapons.  Burns ruled that Zaleski could not mount a First or Second Amendment defense before the trial started.  Burns also twice denied Zaleski’s motions to have the case dismissed on the grounds he had a right to own the illegal guns because he was a member of the state’s “unorganized militia.”

April 13, 2009 in Second Amendment issues | Permalink | Comments (3) | TrackBack

Are any Skadden lawyers doing sentencing work with their "time off"?

I see from this New York Times article that Skadden, Arps is offering "all of its associates — about 1,300 worldwide — the option of accepting a third of their base pay to not show up for work for a year ... [and] is helping associates find pro bono work, and is encouraging them to do so."  In addition to thinking Skadden has come up with an interesting way to try to weather the downturn, I cannot help but wonder if some of this lawyer talent might be encouraged to shift into the sentencing universe. 

With more nearly 2.5 million people already in prison, another 5 millions under some form of supervision, and millions more dealing with the consequences of old or new felony charges, there are no shortage of pro bono opportunities in the criminal justice system.  So, Skadden associates, if you are looking for good pro bono work (that can often get you real courtroom experience), think about heading to your local prison.

Some (arguably related) recent posts:

April 13, 2009 in Who Sentences? | Permalink | Comments (4) | TrackBack

Pondering the fall-out from the Stevens debacle

Today's Legal Times has this piece, headlined "Attorney General Weathers Stevens Fallout -- for Now," which takes early stock of the early aftermath of the latest ugliness in the Justice Department. Here is how it starts:

For the Justice Department, it was a week that might have echoed the toughest days of the Bush era.

First, the department got a very public, and perhaps unprecedented, spanking from a federal judge for mishandling the corruption case against former Sen. Ted Stevens, R-Alaska.  U.S. District Judge Emmet Sullivan targeted six top prosecutors in a criminal contempt investigation for failing to turn over evidence to the defense.  He also took strong aim at the department's Office of Professional Responsibility, which had been investigating the prosecutors, and wondered aloud whether the office was up to the job of policing Justice.

That was Tuesday.  On Wednesday, Attorney General Eric Holder Jr. replaced the longtime head of the OPR with a veteran prosecutor.  The department insists the switch had been in the works for some time and was unrelated to Sullivan's remarks.  But the day after the move, Holder was being touted in The Washington Post for launching an era of reform at Justice.

In fact, the thing that may have made last week quite different from the Bush years was the public response by, and the political reaction to, Holder and the DOJ.  On Tuesday, just after his department was pummeled in court, he appeared on the "CBS Evening News" with Katie Couric and said that he was "obviously troubled by the findings that -- and the statements that -- Judge Sullivan has made.  But we'll cooperate fully with the investigation that has been ordered."

Holder also faced a fairly mild response from Capitol Hill.  It helped that Congress was in recess. But even strong critics of the OPR stayed fairly silent.  During the scandal over the U.S. Attorney firings, Sen. Joseph Lieberman, I-Conn., pushed a bill that would have beefed up public scrutiny of internal misconduct cases.  Last week, in the wake of the Stevens debacle, a spokeswoman said Lieberman has no plans to reintroduce the legislation.

Whether Holder will stay so lucky remains to be seen.

April 13, 2009 in Who Sentences? | Permalink | Comments (1) | TrackBack

April 12, 2009

Are state child abuse sentences often too low?

This long local article from South Carolina, headlined "Child abusers escape jail time," prompts the question in the title of this post.  Here are snippets from the article:

Since 2002, S.C. judges have given no prison time in at least 10 cases in which defendants were initially charged with inflicting great bodily injury on a child — a felony that carries a maximum 20-year sentence but no minimum.... Short of death, the charge is the most serious involving harm to a child. By comparison, a person who seriously injures an adult can be charged with assault and battery with intent to kill, which also carries a 20-year maximum....

A state Senate Judiciary subcommittee on Wednesday will consider a bill ... that would require mandatory two-year prison sentences for day care operators convicted of inflicting great bodily injury on a child.... “It’s unconscionable for any judge to give anyone who pleads guilty to injuring a child probation,” said Veronica Swain Kunz, chief executive officer of the S.C. Victim Assistance Network. “It goes back to women and children being viewed as property.”  She said she supports the state bill being considered Wednesday, noting, “I think (minimum mandatory sentences) should be much, much greater than two years.”

But prosecutors and judges interviewed by The State raised concerns about the bill, introduced Jan. 29 by state Sen. Mike Fair, R-Greenville.  They said mandatory minimums rob prosecutors and judges of flexibility in crafting pleas and sentences, which could result in more trials and a backlog of cases in an already overburdened court system.

“They’re looking at the wrong end of the telescope,” said 15th Circuit Solicitor Greg Hembree of Conway, past president of the S.C. Solicitors Association.  “If you have one judge who’s off the reservation, you get rid of the one guy.  We’re building systems all the time for the one exception.”

Circuit Judge Paul Burch of Pageland, president of the S.C. Association of Circuit Court Judges, said the Legislature needs to be “real careful about what they need to do about mandatory minimums,” though he noted the association has not taken an official position on the issue.

Burch and Circuit Judge Edward Cottingham of Bennettsville were the sentencing judges in two of the 10 probation-only cases in The State’s analysis.  Both said their sentences were based on recommendations from prosecutors.  “When possible, I accept the solicitor’s recommendation because he knows things I don’t know,” Cottingham said.  “But if I had a child in front of me who was really hurt, I would make a great deal about differing with the solicitor.”

It is notable and encouraging to hear state prosecutors advocating against a mandatory minimum prison sentence, though it is not difficult to understand why victim advocates in this context are troubled by frequent sentences of probation in cases in which a child is badly hurt.

April 12, 2009 in Offense Characteristics | Permalink | Comments (15) | TrackBack