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January 6, 2009

Madoff mess raises interesting white-collar bail issues

The money mess created by Bernard Madoff continues to raise interesting legal issues for white-collar crime fans.  Specifically, as detailed in this new New York Law Journal piece, the standards for pre-trial bail are now being tested through the Madoff case:

The decision by Bernard Madoff and his wife to ship jewelry and other valuables to family and friends may land him behind bars sooner rather than later.  Assistant U.S. Attorney Marc Litt told a magistrate judge yesterday that Mr. Madoff and his wife Ruth mailed in excess of $1 million in valuables late last month despite a court order in a related civil case requiring the accused mastermind of a multi-billion dollar Ponzi scheme not to dissipate assets....

Defense attorney Ira Sorkin of Dickstein Shapiro said the mailing of the valuables, which included watches, a pair of cuff links and even a $200 pair of mittens, had nothing to do with allowing Mr. Madoff to remain free on bail.

At issue was the Bail Reform Act, 18 U.S.C. §§3141-3150.  Mr. Sorkin said the act contemplates only the risk of flight and potential danger to the community as factors in deciding whether a defendant should be allowed to stay at liberty pending trial.  The public, he said, is in no danger if his client stays out of jail until the case is resolved....

On Dec. 18. Mr. Madoff was ordered by Southern District Judge Louis Stanton not to dissipate assets in an action brought against him and his firm by the Securities and Exchange Commission.  Mr. Litt said the shipment amounts to obstruction of justice.

But Mr. Sorkin said Mr. Litt's position on the Bail Reform Act would gut the statute. "If you buy into his argument, then every defendant brought before this court should be incarcerated," he said, adding that the Bail Reform Act "does not cover dissipation" of assets.

Mr. Litt countered by citing legislative history - that the Senate Judiciary Committee intended to adopt a "broader definition" of community safety in shaping the reform act.... He also said Mr. Madoff remains a flight risk and that is it "simply impractical for the government to go around and collect anything of value." "The most significant thing is, in the face of a direct and clear order of which the defendant was aware, he violated that order," Mr. Litt said.

Some recent related Madoff posts:

January 6, 2009 in White-collar sentencing | Permalink | Comments (1) | TrackBack

January 5, 2009

What might 2009 have in store for . . . drug sentencing law and policy?

Continuing the 2009 "what's in store" series, let's turn to drug sentencing law and policy.  In this area, the social attitudes and legal approaches adopted by the new Obama Administration are likely to be critical.  Even though the majority of drug crimes are handled at the state level, how federal authorities set priorities and fund initiatives will set the tone.  Notably, the Obama transition site has these statements about the new Administration's priorities in this arena: 

Despite these seemingly progressive sentiments, as noted in this post, drug policy reformers we not too excited about the nomination of Eric Holder for Attorney General.  In addition, as noted in this post, there are reasons to be concerned that the Obama Administration is unlikely to change swiftly or radically the nation's commitment to the "war on drugs."   And yet, with today's news that academics have been nominated to be the next Solicitor General and to head the Office of Legal Counsel, maybe we could see some notable developments in this arena.

Some related posts on drug reform and the new Administration:

Other posts so far in the 2009 "what's in store" series:

January 5, 2009 in Criminal justice in the Obama Administration | Permalink | Comments (2) | TrackBack

Will we get more commutations from President Bush in the weeks ahead?

When it comes to executive clemency exercised by the President, pardon grants tend to generate the most headlines, whether it is President Ford's pardon for Nixon or President Clinton's pardon for Rich or President Bush's pardon (and take back efforts) for Toussie.  But, especially in our modern of extremely long federal sentences, I sure wish commutations would get move love and attention.  Helpfully, as evidenced by this column, Debra Saunders is with me on this front:

My fear is that the negative fallout from the Toussie story will prompt Mr. Bush to issue fewer pardons and commutations.  Mr. Bush has been too stingy with this power, even as the foolish inflexibility of federal mandatory minimum sentences has created many worthy recipients.  Among them: Clarence Aaron, who is serving a life-without-parole sentence for a first-time nonviolent drug offense.  Add Ignacio Ramos and Jose Compean, two Border Patrol agents sentenced to 11 years and 12 years respectively for shooting and wounding a fleeing drug smuggler in 2005 and covering up the incident.

What's the difference between Aaron, Ramos and Compean and the individuals who rated a Bush pardon or commutation?  My guys aren't well connected, but they also were not career criminals. Aaron was a college student who made a serious criminal decision — and deserved to serve some prison time.  Ramos and Compean covered up the questionable shooting of a fleeing drug smuggler.  Yes, juries found all three men guilty, but juries had no input into their draconian sentences.

Only the president of the United States has the power to right the wrongness of their sentences. Only Mr. Bush can bring justice — for in these cases, a commutation would not bring mercy but justice — to men who have known mindless punishment without leavening proportion.  The outrage is not simply that a well-connected white, white-collar, criminal won a pardon.  It also would be an outrage if Mr. Bush failed to do right by Aaron, an unconnected African-American man serving life for a first-time nonviolent offense, and two Latino Border Patrol agents who, if they did break the law, did so in the heat of the chase, not the cool of a boardroom.

Notably, President Bush has now received some public praise for his most recent commutation.  Specifically, the recent commutation of the prison sentence of Reed Prior generated this two very positive pieces appearing in this Sunday's Des Moines Register:

The second of these pieces is an effective editorial which starts and ends this way:

To those who know Reed Prior, he seemed the last person who would be sentenced to life in federal prison. To those who know George W. Bush's reputation, he seemed the last president who would set Prior free in an act of mercy. Yet, both happened, and the irony reveals injustice not just in one case but in criminal sentencing in general....

In these cases, the criminal-justice system not only missed opportunities to salvage lives, but discarded them. A remarkable group of Iowans from across the business, political and social spectrum saw how such an opportunity was badly missed in Prior's case, and they got George W. Bush to agree.

It's time for members of Congress and state lawmakers to end the harm caused by wrongheaded drug prosecutions and mandatory prison sentences and ensure opportunities to salvage lives are not missed in the future.

Especially because I know of more than a few defendants sitting in federal prison whose cases justify serious clemency consideration, I hope that more commutations will be coming from the White House soon.  I am not holding my breath, but I am going to remain hopeful.  I am also going to urge President-elect Obama to get moving on commutations the minute he takes over this historic power.

January 5, 2009 in Clemency and Pardons | Permalink | Comments (2) | TrackBack

Notable op-ed assails sentencing guidelines based on White acquitted conduct ruling

I was pleased and intrigued to learn from a helpful reader about this potent new op-ed from a local Kentucky paper, headlined "No safety in numbers."  Here are excerpts:

The recent decision by the Sixth Circuit Court of Appeals upholding the 22-year sentence of Roger White, a getaway driver in a bank robbery, is yet another example of why it is time for Congress, and the states, to reconsider the wisdom of sentencing guidelines.....

While determinate guideline sentencing has been praised by many as a cure-all for the problem of recidivism, many others view determinate sentencing as a 20-year mistake which has done nothing more than add to the already over-burdened prison system which in many states, including Kentucky, is teetering on the verge of collapse....

Although no one wants to appear soft on crime, we have reached a point in history where we need to sit down and reconsider whether this 20-year experiment in determinate sentencing was a mistake. It is time to sit down and begin a new dialogue on sentencing, a dialogue which includes reestablishment of parole as an option to reward those who decide to use their time in prison as an opportunity for rehabilitation.

A year from now, few will remember or care about the 22-year sentence handed to Roger White as a result of the federal sentencing guidelines. In fact, with so many other problems facing our communities today, we have a justifiable excuse for not doing anything to correct the problems of determinate sentencing on the over-burdened state and federal prison systems.

However, what we need to understand is that when our prison systems finally collapse through over-crowding, a collapse which will come sooner rather than later, we will no longer have the luxury of an open dialogue aimed toward a solution. Instead, we will be left with a crisis of monumental proportions which will leave few options of how and where to incarcerate those who we truly need to be incarcerated for the safety of our communities.

Some related posts about the White case:

January 5, 2009 in Scope of Imprisonment | Permalink | Comments (1) | TrackBack

PA Gov. Rendell calling to end parole for repeat violent offenders

This Philapelphia Inquirer piece, headlined "Rendell: Eliminate parole for repeat violent offenders," reports on the latest crime and punishment news from the Keystone State:

After a year marked by horrific crimes committed by repeat violent offenders, Gov. Rendell called yesterday for legislation to keep them locked up longer. "The parole system simply doesn't work for these violent individuals who use deadly weapons," Rendell told reporters yesterday at the Park Hyatt Philadelphia at the Bellevue.

"It works for nonviolent offenders," he said. "In 2007, 95 percent of the state's nonviolent 31,000 parolees were not rearrested. "But not for this dangerous group of individuals . . . who learn to game the system."

Rendell's effort would not change the sentencing guidelines that judges employ or the factors that parole boards can consider. Instead, he would require judges to sentence repeat violent offenders to specific, fixed terms, instead of ranges, in effect eliminating any opportunity for early release.

As informed sentencing fans know, the federal sentencing system and a number of state systems have eliminated parole for all offenders as part of modern structured sentencing reforms.  In addition, the current draft of the new MPC sentencing provisions calls for a complete elimination of systems of parole.  Against this backdrop, I like Governor Rendell's more nuanced approach here, which usefully seeks to distinguish for parole purposes between "repeat violent offenders" and all other offenders.

Of course, as in all sentencing proposals, the devil is in the details.  Some defendants get sentenced as "repeat violent offenders" in the federal sentencing for illegally possessing a firearm after having felony record based on relatively minor state assault or drug charges. 

January 5, 2009 in Sentences Reconsidered | Permalink | Comments (8) | TrackBack

Any new thoughts about criminal justice as Prez-elect Obama fills out his Justice league?

As noted in this recent post, President-elect Obama today officially tapped Harvard Law Dean Elena Kagan to be the next Solicitor General.  In addition, as detailed in this official press release, the Obama team has also today named a number of other persons to fill key spots in the Justice Department:

Today, President-elect Barack Obama announced that he intends to nominate the following individuals for key posts at the United States Department of Justice: David Ogden, Deputy Attorney General; Elena Kagan, Solicitor General; Tom Perrelli, Associate Attorney General; and Dawn Johnsen, Assistant Attorney General for the Office of Legal Counsel.

President-elect Obama said, “These individuals bring the integrity, depth of experience and tenacity that the Department of Justice demands in these uncertain times. I have the fullest confidence that they will ensure that the Department of Justice once again fulfills its highest purpose: to uphold the Constitution and protect the American people. I look forward to working with them in the months and years ahead.”

I know these impressive folks only by reputation, but those reputations bode well for anyone (like me) hoping that the "change" mantra becomes a serious reality in the federal administration of justice.  Relatedly, regular readers may recall the name Dawn Johnsen from this post, which noted that she authored this terrific chapter from a publication by the Center for American Progress Action Fund, entitled "Change for America: A Progressive Blueprint for the 44th President."  That chapter included these important sentiments:

Although crime is largely a state and local responsibility, federal leadership can be enormously influential beyond the federal system through assistance that fosters innovation, supports research, and shares information about “what works” in combating crime....

Incarceration in the United States is an issue crying out for DOJ attention.  After holding steady for most of the 20th century, the federal prison population increased 10-fold in the last 25 years. The United States at all levels of government incarcerates more of its population than any other nation in the world, both in terms of the incarceration rate and in absolute numbers....

The costs, both financial and social, are astronomical.  DOJ should undertake affirmative efforts to decrease prison populations without endangering public safety.  Again, states can provide useful models for each other and for the federal government.  In response especially to budget crises, some states have successfully reduced incarceration rates without increasing crime.  DOJ should study, disseminate, and implement best practices, which include increased and improved use of drug courts and treatment alternatives to incarceration....

I sincerely hope that AAG-nominee Johnsen sustains a fierce commitment to deal with mass incarceration in the new Administration, and I also hope these other nominees share this perspective. 

With these appointments and modern economic realities and various notable jurisprudential doings, I am starting to become (dangerously?) optimistic that we could be on the verge of a new criminal justice era in the United States.  Perhaps readers can/should try to burst my optimism bubble so that I do not start expecting too much.

Some recent related posts:

January 5, 2009 in Criminal justice in the Obama Administration | Permalink | Comments (6) | TrackBack

Circuits ring in 2009 with some sex and death

The first two 2009 sentencing related opinions I noticed today were, perhaps fittingly, dealing with sex offender sentencing and the administration of capital punishment.  I predict that these will be two of the hottest topics in sentencing law and policy for 2009, so it is notable to see the sentencing year get off to this kind of jurisprudential start.

Specifically, the Seventh Circuit has an intricate little child porn sentencing opinion today in US v. Osborne, No. 08-1176 (7th Cir. Jan 5, 2009) (available here), and the Eleventh Circuit has an elaborate lengthy death penalty decision today in Wellons v. Hall, No. 07-13086 (11th Cir. Jan 5, 2009) (available here). 

Some recent related posts:

UPDATE:  The Fourth Circuit also had a lengthy death penalty decision to ring in the new year in Larry v. Branker, No. 07-7 (4th Cir. Jan 5, 2009) (available here).  This opinion includes and long discussion of the application of mental retardation standards in the wake of the Supreme Court's ruling in Atkins making those with mental retardation ineligible for the death penalty.

January 5, 2009 | Permalink | Comments (1) | TrackBack

HLS Dean Elena Kagan to be nominated for US Solicitor General

Thanks to my status as an alum of the Harvard Law School, I just got big news via a "personal" e-mail from current HLS Dean Elena Kagan.  Here is the first part of the text of the e-mail:

I am writing to all of you — the community of students, faculty, staff, and alumni of Harvard Law School — to let you know that today President-elect Barack Obama will announce his intention to nominate me to serve as Solicitor General of the United States.  If confirmed by the Senate, I will resign the deanship of the Law School and take a leave of absence from the faculty.

I have accepted this nomination because it offers me the opportunity, working under the leadership of the President-elect and his nominee for Attorney General, Eric Holder, to help advance this nation's commitment to the rule of law at what I think is a critical time in our history. I am honored and grateful, awestruck and excited, to be asked to contribute to this most important endeavor. And perhaps, for me, it adds a special touch of sweetness to the occasion that the person making the nomination, in whose capacity for greatness I deeply believe, is himself a member of the group to which I am writing.

Some related posts:

January 5, 2009 in Who Sentences? | Permalink | Comments (2) | TrackBack

January 4, 2009

How much can and will the "tenth justice" influence sentencing jurisprudence?

I have not yet done a "what might be in store" post about sentencing jurisprudence because there are so many uncertain variables.  For example, right now there is the pending Ice Sixth Amendment case awaiting a decision from the Supreme Court (basics here), the latest en banc acquitted conduct federal sentencing ruling from the Sixth Circuit (basics here), and lots cases involving important constitutional challenges to long state prison sentences (see recent examples from Califorinia and Florida and Georgia).

Against this backdrop, I was especially intrigued to see this new Bloomberg reportindicating that two notable academics are on the Obama team's short list for Solicitor General:

The first female deans of the Harvard and Stanford law schools are the top candidates to serve as Barack Obama’s voice at the U.S. Supreme Court, according to people familiar with the selection process. Harvard Law School Dean Elena Kagan, 48, and former Stanford Law School Dean Kathleen Sullivan, 53, are the two leading contenders for the position of solicitor general, a position informally known as the “tenth justice.”

For either, the job ultimately might be a step toward a seat on the Supreme Court itself.  The next solicitor general will preside over an almost-certain shift of the federal government’s position before the high court on terrorism, product-liability lawsuits and other issues.  No woman has ever served as solicitor general on a permanent basis.

“They already have to be on any list of potential Supreme Court nominations for the administration,” said Jeffrey Fisher, a Stanford law professor who argues before the high court. “Having the experience of being solicitor general would only accentuate their portfolio.”

I have great repsect for both Kagan and Sullivan, in part because both have amazing reputations as both academics and as administrators.  In my view, President-elect Obama could not go wrong with either choice (and this nation is long overdue for a female lawyer to be nominated and confirmed as SG).

Responding to the Bloomberg report, I was going to speculate in this post about what Kagan and Sullivan might think about Blakely and Bookerand acquitted conduct and the Eighth Amendment.  But, as I was thinking these matters, a broader question came to mind: how much can and will a new Solicitor General impact constitutional doctrine and federal policies in the sentencing arena? 

Let me make this inquiry concrete with respect to some of the issues flagged above: if a new SG believes that acquitted conduct enhancements are problematic, could and should she urge the Supreme Court to take up an acquitted conduct case and push the Justices to move the existing jurisprudence in favor of criminal defendant?  How about if the new SG finds long mandatory minimum sentences for juvenile or non-violent offenders to be troublesome, could and should she urge the Supreme Court to reconsider some of its old precedents in these area?

Because I have never worked in the SG's office, I have no sense of how much a new SG can or should play an active role in seeking to push the Supreme Court's jurisdiction in new or revised directions.  I hope readers with some experience or thoughts on this front will feel free to share their thoughts in the comments.

January 4, 2009 in Who Sentences? | Permalink | Comments (7) | TrackBack

Effective op-ed about dealing with prison costs coming due

Anthony Barkow, who is the executive director of NYU's terrific Center on the Administration of Criminal Law, has an important op-ed today in the Washington Post.  This op-ed highlights the challenges that Virginia Governor Tim Kaine and so many other governors are now facing as their prison costs continue to expand while state resources continue to contract.  Here are excerpts:

Virginia is facing a fiscal emergency.  The commonwealth faces a nearly $3 billion shortfall this year.  At the same time, the growth of Virginia's prison budget has dramatically outpaced other spending items over the past decade. Spending on incarceration consumes more than $1 billion each year. In response to the state's fiscal crisis, and in recognition of the explosion in prison spending, Gov. Tim Kaine recently proposed [front page, Dec. 18] releasing some prisoners 90 days before the end of their sentences.

The governor's proposal is limited to nonviolent offenders who have been model inmates, and merely enlarges the period of early release to 90 days from the present 30 days.... But state Attorney General Bob McDonnell, who is running for governor,. has criticized Kaine's idea through his spokesman.

But Kaine has it exactly right.  Tired, tough-on-crime rhetoric says that all offenders should be locked up for as long as possible.  But this approach simply doesn't work as a method of governance.... The result is burgeoning prison populations and spiking prison costs....

But now, the economic downturn has brought criminal justice expenditures to a collision with reality.  Sometimes, crisis is opportunity.  Virginia can't blindly devote money to incarceration.  It needs to differentiate between those who deserve and need to remain in jail, such as violent offenders, and those who don't, such as nonviolent offenders who pose no danger to society and who will serve or may have already served substantial prison time.

After all, when resources are limited, spending money to incarcerate the nonviolent, non-dangerous offender means less money to spend on other priorities. What other priorities should lose funding?  Schools?  Efforts to put more police on the streets?  Bigger cuts in these areas will increase crime....

It takes a brave governor to recognize that sound government sometimes means having the guts to tell people that the criminal justice system has gone too far.  Kaine's critics can use all the tough-on-crime rhetoric they want to try to get elected.  But Kaine actually has to govern.  And with this proposal, he's governing wisely.

This op-ed highlights various political and practical realities that have been the subject of discussion on this blog for years.  I  concur with all that it says, except the for concluding notion that a governor has to be "brave" to tell the truth about criminal justice expenditures.  I do not accept or support the notion that leaders are being "brave" when making responsible public policy decisions. 

Rather than calling Governor Tim Kane brave, I think those politicians who continue to espouse irresponsible tough-on-crime rhetoric should be called out as cowards.  The modern sentencing reform movement was driven in part by a call for "truth in sentencing," and a commitment to truth should extend to all those politician who are eager to talk tough and then ignore the hard economic and social realities that clearly follow such talk.

Some related posts: 

January 4, 2009 in Scope of Imprisonment | Permalink | Comments (7) | TrackBack

The high costs of an aging prison population

The Richmond Times Dispatch has two strong articles in its Sunday edition about the challenges states face in dealing with an aging prison populations.  It also has this remarkable slideshow, which is a must-watch  Here are snippets from this main article, headlined "Growing old behind bars:"

Like the rest of the country, Virginia is coping with a growing number of aging inmates.... In 1999, Virginia had 2,015 prisoners 50 or older.  Today, there are almost 4,700, and by 2011, state officials expect there to be 5,057.

A drop in the number of paroles granted to inmates who remain eligible is a factor in Virginia's increasing number of older inmates. Truth-in-sentencing reforms that in 1995 led to stiffer, no-parole sentences for violent crimes are expected to contribute to Virginia's aging prison population in coming years.

At Deerfield, wheelchairs and walkers line aisles in the secured assisted-living dormitory, where it would be easy to confuse the frail residents with those in nursing homes.... Experts say substance abuse, little or no health care before imprisonment and the stress of living behind bars can leave a 50-year-old inmate physiologically 10 to 15 years older than his chronological age.

In general, older inmates require more supervision and medical and mental-health care, as well as special diets, mobility aids and special housing. Deerfield, Virginia's only prison dedicated to geriatric inmates and inmates with special medical needs, accommodates 1,080 inmates, 90 of them in wheelchairs and 65 percent over the age of 50.

This companion article, headlined "Expenses higher for geriatric prisoners," puts a partial price tag on some of these trends:

According to the [state corrections] department, in the fiscal year that ended June 30, 2007, the annual cost per inmate at the Deerfield Correctional Center was $27,985, compared with $23,246 per capita systemwide and $16,000 to $17,000 a year at medium-security dormitory facilities.

A recent survey of 41 states and the U.S. Bureau of Prisons by Corrections Today found there were almost 125,000 inmates 50 or older, but fewer than 10,000 beds in facilities dedicated to older inmates. The Corrections Today report predicts the nation's older inmate population could increase tenfold in the next decade and the associated health costs could double that.

Some related posts:

January 4, 2009 in Scope of Imprisonment | Permalink | Comments (0) | TrackBack