June 20, 2009
Should a governor be writing a sentencing judge urging a harsh sentence?
The question of this post is prompted by this local article from Pennsylvania, which is headlined "Judge blasts Gov. Rendell's letter about sentencing." Here are some of the particulars:
From the bench Wednesday afternoon, county President Judge William E. Baldwin criticized Gov. Ed Rendell’s recent interjection into the sentencing of Shenandoah-area teens Brandon J. Piekarsky and Derrick M. Donchak. “I’ve never before heard of a head of state giving a suggested sentence for a specific criminal case. I am not giving consideration to the governor’s recommendation,” Baldwin said, referencing a letter Rendell sent to county District Attorney James P. Goodman on May 28....
In that letter — the second time the governor has weighed in on last July’s high-profile death of Luis Eduardo Ramirez Zavala, an illegal Mexican immigrant — Rendell asks for the highest possible sentences for Piekarsky, 17, and Donchak, 19. “I also believe ... the maximum sentence is warranted given both the sheer brutality of Piekarsky’s and Donchak’s deadly attack and that the crime appears to be racially motivated,” Rendell said in the letter, which Goodman later shared with Baldwin and defense counsel.
On May 1, Piekarsky and Donchak were acquitted of the most serious charges in connection with Ramirez’s death. On Wednesday, they were sentenced for simple assault charges and alcohol-related charges. Piekarsky must serve six to 23 months, while Donchak must serve seven to 23 months in county prison.
Rendell had previously urged federal charges against the teens in a May letter to the Department of Justice — a move that drew harsh rebukes from county Commissioner Francis V. McAndrew and U.S. Rep. Tim Holden, D-17.
Goodman said such a letter from a sitting governor is “clearly unusual,” while Frederick J. Fanelli, Piekarsky’s attorney, echoed Baldwin’s opinion. “I’ve never before seen a head of state interject himself in a case like this,” Fanelli said in court Wednesday, adding Rendell’s comments amount to “unprecedented intervention.”
Before handing down the sentences Wednesday, Baldwin blasted Rendell’s involvement. “I can only conclude he must have been misinformed about the nature of the verdict,” Baldwin said.
While Rendell again stressed in the letter he does not wish to “second guess” the jury, he specifically cites charges Piekarsky and Donchak were acquitted of. “This kind of senseless criminal behavior and ethnic intimidation is never appropriate,” the letter states. Piekarsky and Donchak were each found not guilty of ethnic intimidation.
Baldwin said he “could not nullify the jury’s verdict” by considering any sort of ethnic or racial components during sentencing, since the jury acquitted the teens of such crimes.
In addition to the questionable nature of Governor Rendell's involvement, this case also raises the issue of the consideration of acquitted conduct in state sentencing. As all sophisticated federal sentencing fans know, federal sentencing judges frequently "nullify a jury verdict" by imposing increased sentences based on acquitted conduct. Perhaps because Governor Rendell's wife is a federal judge, he may have thought it just fine to urge an increased sentence despite a jury's acquittal.
June 19, 2009
Judge Kent impeached by House of Representatives
Here is an example of unique form of collateral consequences of a conviction: "The House today impeached imprisoned U.S. District Court Judge Samuel B. Kent and sent his case to the Senate for trial." This Houston Chronicle article provides more details:
The Senate is expected to quickly convene a trial – possibly within a matter of weeks – to cut off the judge’s $174,000 annual federal salary.
The House overwhelmingly adopted four articles of impeachment against the 59-year-old jurist on rapid-fire roll call votes over the course of 30 minutes. The vote on the first article of impeachment was 389-0. Not a single member of the House spoke on Kent’s behalf.
The charges accused Kent of abusing his power as a judge by sexually assaulting two female court employees as well as lying about his conduct to a judicial inquiry, the FBI and the Justice Department.
Rep. John Conyers, D-Mich., chairman of the House Judiciary Committee that urged impeachment, called Kent’s conduct “shocking and shameful.”... Rep. Louis Gohmert, R-Tyler, decried “the games that were played” by Kent as he tried to retain his post and the salary that goes with it even though he is in prison.
The House has last impeached a federal judge in 1989. A total of 13 judges have faced impeachment proceedings in the House since 1803, seven of whom were subsequently convicted by the Senate and removed from the bench.
Kent entered a federal prison medical facility in Ayer, Mass., on Monday to begin a 33-month felony sentence on one count of obstruction of justice following a plea bargain that dropped five other charges. Kent is the first federal judge to serve prison time since 1991.
Related posts on the Kent proceedings:
- Judge Kent takes a deal (and now becomes the latest, greatest topic for sentencing debate)
- "Is Kent getting off easy?"
- More questions and fall-out following Judge Kent's guilty plea
- Latest notable news surrounding former judge (now felon) Sam Kent
- Any predictions on former Judge Sam Kent's sentence? UPDATE: 33 months
- Latest news on impeachment process for former Judge Kent
- Interesting materials from the hearing surrounding impeachment of Judge Kent
- Judge Kent's letter discussing judicial activism, isolation and substance abuse
- Judge Samuel Kent finally heading to prison today
First(?) significant(?) Second Amendment ruling favoring a federal criminal defendant
Thanks to this post by Eugene Volokh, titled "Rare (Partial) Victory in Second Amendment Case," I learned that earlier this week a federal district judge issued this brief opinion in US v. Engstrum, No. 2:08-CR-430 (D. Utah June 15, 2009), that rules in favor of a criminal defendant based on the Second Amendment. Though Eugene calls this a "rare" victory, I think it is the first and so far only victory for a federal criminal defendant arguing that the Second Amendment should impact his federal criminal prosecution for a gun possession crime.
The ruling in Engstrum is a nuanced and somewhat limited ruling (which is why it is described as just a "partial" victory for the defendant). Despite its limits, I still think Engstrum is potentially significant for both legal and political reasons. Here is how Eugene describes the ruling:
A federal court holds that someone being prosecuted for possessing a gun after having been convicted of a domestic violence misdemeanor is constitutionally entitled to present an affirmative defense "that he posed no prospective risk of violence" (which I take it must mean no prospective risk of violence beyond that posed by the average person). The jury would thus be instructed that, if it agrees with the defendant that he posed no prospective risk of violence, it should acquit despite the flat prohibition imposed by the statute. The comments to Eugene's post are as dynamic and nuanced as is the ruling in Engstrum, and I hope readers of this blog will add to the dialogue. Notably, the ruling concludes by providing that "the government and Defendant may submit briefs to the Court within ten days of the date of this Order, addressing: (1) the wording of the Court’s proposed jury instruction; and (2) the Court’s ruling on Defendant’s burden of production at trial." Perhaps readers might even make some suggestions about what the government and the defendant ought to say in these briefs.
A federal court holds that someone being prosecuted for possessing a gun after having been convicted of a domestic violence misdemeanor is constitutionally entitled to present an affirmative defense "that he posed no prospective risk of violence" (which I take it must mean no prospective risk of violence beyond that posed by the average person). The jury would thus be instructed that, if it agrees with the defendant that he posed no prospective risk of violence, it should acquit despite the flat prohibition imposed by the statute.
The comments to Eugene's post are as dynamic and nuanced as is the ruling in Engstrum, and I hope readers of this blog will add to the dialogue.
Notably, the ruling concludes by providing that "the government and Defendant may submit briefs to the Court within ten days of the date of this Order, addressing: (1) the wording of the Court’s proposed jury instruction; and (2) the Court’s ruling on Defendant’s burden of production at trial." Perhaps readers might even make some suggestions about what the government and the defendant ought to say in these briefs.
Puppy problems produced by prison populations
This local dispatch reporting on the prison economy in Oregon, which is headlined "Ore. Lawmakers: State can't afford tougher penalties for animal abuse," prompted me to produce the alliterative title to this post. Here are the particulars:
A bill currently making it's way through the Oregon legislature would create stiffer penalties for several types of criminals. However, Animal abusers are not among them.
The Criminal Justice Commission dropped felony and aggravated animal abuse changes from the bill after lawmakers said Wednesday the state cannot afford to put more people in prison.
The news comes on the heels of a case in which a Talent man plead guilty in Jackson County Circuit Court Wednesday to suffocating a litter of five 8-week-old mixed-breed puppies in plastic bags last month. Another man dumped the puppies at the Southern Oregon Humane Society.
54-year-old Robert Fullmer was sentenced to 40 days in jail. Prosecutors said that Fullmer had already been in jail 35 days, so his sentence will soon be up. Before he agreed to a plea deal, Fullmer faced felony charges of animal abuse. Prosecutor Jeremy Markiewicz says he expects irate phone calls about the sentence, but he says state sentencing guidelines don't provide for stern sentences for animal abuse....
The rules coordinator for the CJC says he hopes the legislature will adopt the new stricter penalties in the next session in 2011
June 18, 2009
Lots and lots of notable new proposed priorities from US Sentencing Commission
The US Sentencing Commission has now posted here its "notice of proposed priorities and request for public comment ... for the amendment cycle ending May 1, 2010." Unlike in prior years in which the USSC seemed to be acting as if Booker never happened, this latest set of proposed priorities is much more modern. Federal sentencing fans should check out all the proposed priorities, but these proposals seem especially notable and valuable:
Continuation of its work on federal sentencing policy with the congressional, executive, and judicial branches of the government, and other interested parties, in light of United States v. Booker and subsequent Supreme Court decisions, possibly including (A) an evaluation of the impact of those decisions on the federal sentencing guideline system; (B) development of amendments to the federal sentencing guidelines; (C) development of recommendations for legislation regarding federal sentencing policy; (D) a study of, and possible report to Congress on, statutory mandatory minimum penalties, including a review of the operation of the “safety valve” provision at 18 U.S.C. § 3553(e); and (E) a study and report on the appellate standard of review applicable to post-Booker federal sentencing decisions.
A review of departures within the guidelines, including (A) a review of the extent to which pertinent statutory provisions prohibit, discourage, or encourage certain factors as forming the basis for departure from the guideline sentence; and (B) possible revisions to the departure provisions in the Guidelines Manual, including in Chapter Two and in Parts H and K of Chapter Five, in light of that review and any other information coming to the Commission’s attention, as well as potential technical and conforming amendments to the Guidelines Manual to facilitate ease of use....
Continuation of its multi-year study of the statutory and guideline definitions of "crime of violence", "aggravated felony", "violent felony", and "drug trafficking crime", including an examination of relevant circuit conflicts regarding whether any offense is categorically a "crime of violence", "aggravated felony", "violent felony", or "drug trafficking crime" for purposes of triggering an enhanced sentence under certain federal statutes and guidelines. This study may culminate in guideline amendments and/or a report to Congress recommending statutory changes....
Review of child pornography offenses, and possible promulgation of guideline amendments and/or a report to Congress as a result of such review. It is anticipated that any such report would include (A) a review of the incidence of, and reasons for, departures and variances from the guideline sentence; (B) a compilation of studies on, and analysis of, recidivism by child pornography offenders; and (C) recommendations to Congress on any statutory changes that may be appropriate.
Wow, that is a lot of plans, and I have left out a good number of other priorities. Though I am very pleased to see all the activity and ambition now coming from the USSC, I hope that the USSC is not risking biting off more than it can effectively chew. But the USSC gets big-time kudos from me for even starting to make such a huge effort.
SCOTUS hands down opinion in a few of its final criminal law cases, including DNA access ruling
The Supreme Court's term is winding down, and thanks to live-blogging by SCOTUSblog I can report on the basics of the criminal law rulings that the Justices handed down this morning:
The Court has released the opinion in Yeager v. United States (08-67): Reversed and remanded, with Justice Stevens writing for the 6-3 Court. Justice Kennedy concurs in part and in judgment, Scalia dissents joined by Thomas and Alito, Alito dissents joined by Scalia and Thomas. The opinion in Yeager is available here.
The Court has released the opinion in District Attorney's Office for the Third Judicial District, et al. v. Osborne (08-6): reversed and remanded with Justice Roberts for a 5-4 Court. Justice Alito filed a concurring opinion joined by Justice Kennedy and joined by Thomas in part. Justice Stevens filed a dissenting opinion, joined by Ginsburg and Breyer and in part by Justice Souter. Justice Souter filed a dissenting opinion. The opinion is available here.
I am on the road most of today (and also most interested right now in another national institution), so others will have to comment on anything blockbuster to be found in these rulings. I hope to be able to jump in with some comments late tonight. In the meantime, here is early SCOTUSblog coverage of the Osborne DNA ruling:
Chief Justice John G. Roberts, Jr., writing for the majority in District Attorney’s Office v. Osborne (08-6), noted that DNA testing provides “an unparalleled ability” to prove innocence or guilt, but its availability “cannot mean that every criminal conviction, or even every criminal conviction involving biological evidence, is suddenly in doubt.” The task of writing rules to control access to DNA evidence “belongs primarily” to the legislature, the Chief Justice wrote. Three of the Justices who joined the majority said in a separate opinion that they would have gone further in rejecting the DNA access claim in the case, saying that such claims should not be pursued in a civil rights lawsuit, but through a habeas plea — but then only after trying the challenge in state court. Moreover, those three, in an opinion written by Justice Samuel A. Alito, Jr., said that, if a defense lawyer fails to seek DNA testing during trial, and does so for tactical reasons, there is no constitutional right to seek access following conviction.
Chief Justice John G. Roberts, Jr., writing for the majority in District Attorney’s Office v. Osborne (08-6), noted that DNA testing provides “an unparalleled ability” to prove innocence or guilt, but its availability “cannot mean that every criminal conviction, or even every criminal conviction involving biological evidence, is suddenly in doubt.” The task of writing rules to control access to DNA evidence “belongs primarily” to the legislature, the Chief Justice wrote.
Three of the Justices who joined the majority said in a separate opinion that they would have gone further in rejecting the DNA access claim in the case, saying that such claims should not be pursued in a civil rights lawsuit, but through a habeas plea — but then only after trying the challenge in state court. Moreover, those three, in an opinion written by Justice Samuel A. Alito, Jr., said that, if a defense lawyer fails to seek DNA testing during trial, and does so for tactical reasons, there is no constitutional right to seek access following conviction.
WWJD about the conflict between religion and restrictions on sex offenders?
This article from the Atlanta Journal-Constitution, headlined "Church-activity ban prompts legal fight," raised questions about what will judges do (and also what would Jesus do) concerning a Georgia law prohibiting sex offenders from volunteering at churches. Here are some of the particulars:
A Georgia law banning sex offenders from volunteer work at churches should be struck down because it "criminalizes fundamental religious activities," a court motion filed Tuesday says. The motion is the latest legal assault on the controversial state sex-offender registry law, one of the toughest in the nation. A new provision says no registered sex offender shall be employed by or volunteer at a church.
This makes it a crime for sex offenders to sing in adult choirs, prepare for revivals or cook meals in a church kitchen, said the motion, which seeks a court order halting enforcement of the provision before it becomes law July 1. It was filed in U.S. District Court in Atlanta as part of ongoing litigation that seeks to declare the law unconstitutional....
The goal of the state's sex-offender registry law is to keep sex offenders away from areas where children congregate and let the public know where the offenders reside. Its punishments are severe: Any offender caught working at or volunteering at a church can be sentenced to 10 to 30 years in prison.
Sen. President pro tem Eric Johnson (R-Savannah) said Tuesday that nothing in the law prohibits someone from attending a place of worship. "They just can't be Sunday school teachers or volunteer for a vacation Bible school," he said. "It prevents them, as it should, from being around children." The motion stretches the intent of the law as a way to topple it, Johnson said. "I think somebody's trying to use religion to accomplish their own agenda."
Lori Collins, a 47-year-old mother of two from Henry County, is on the registry because she was convicted of statutory rape six years ago in Screven County for having sex with a 15-year-old boy. In prison, Collins completed the Department of Corrections' faith and character program and served as assistant to the chaplain. Since her release, Collins has become a licensed pastor, is a regular churchgoer at Mount Paran Church of God and is active in prison ministries.
As of July 1, she said Tuesday, she will no longer be able to do this volunteer work or help with administrative functions at two small evangelical ministries. "If we're practicing our faith and doing this work, we're doing the work God called us to do," said Collins, who filed an affidavit in support of the motion. "The state is hindering what the Bible clearly speaks about. I just want them to take another look at this." Collins said she would never volunteer for any activity involving children....
The motion is part of ongoing litigation filed in 2006 after the Legislature enacted restrictions on where sex offenders could live and work. U.S. District Judge Clarence Cooper initially issued a temporary restraining order prohibiting law enforcement from barring registered offenders from living within 1,000 feet of a school bus stop. That order has since been lifted, but the bus stop restriction is not being enforced while the litigation makes its way through court.
Last year, the Georgia Supreme Court struck down part of the law prohibiting registered offenders from living within 1,000 feet of places where children congregate. This past session, the Legislature revised the law primarily to address the state Supreme Court's ruling.
One notable example of a pro athlete not getting a sentencing break (and of jury sentencing)
While lots of commentators are questioning the sentencing leniency shown to Donte Stallworth, this story from Texas provides evidence that former pro athletes do not always get sentencing breaks:
A former New York Yankees outfielder was sentenced to 45 years in prison Wednesday for sexually assaulting a 12-year-old girl in Tarrant County, ending what one prosecutor described as "a reign of terror over girls."
Although Mel Hall Jr., 48, was convicted only in the case of the 12-year-old, whom he had coached in basketball in the late 1990s, four more women testified during the trial’s punishment phase that he had victimized them, too, in the past two decades. Hall coached three in either basketball or softball. The fourth was a former Connecticut woman who had a four-year relationship with Hall that began when she was 15 and he was playing for the Yankees....
Among the interesting aspects of this story is that Texas uses jury sentencing even for a non-capital case like this one:
Jurors who had deliberated 90 minutes to find Hall guilty took even less time — 75 minutes — to decide his sentence Wednesday. Hall received 40 years in prison on each of three counts of aggravated sexual assault of a child, and five years each on the two counts of indecency with a child....
Defense attorney Brady Wyatt expressed disappointment after the trial. "For all the good that this man has done in his life, it’s an excessive sentence," he said. "For all the people he’s positively affected — it doesn’t seem the jury took that into adequate consideration."...
On Tuesday, jurors had heard from two other women — another basketball teammate of the girl, who said Hall had sex with her when she was 14 (charges are pending in that case) and a woman who said that Hall, in 1989, began a public relationship with her when she was 15. Her prom picture with Hall was featured in a Yankees player yearbook.
Several witnesses and a love letter introduced into evidence also alluded to a relationship Hall had with a 17-year-old girl after he was arrested in June 2007. "What was his weapon? Trust," D’Avignon told jurors in closing arguments. "Over and over again, he shook the hand of a parent and said, 'It’s OK. I’ll take care of them. I’ll make her a better person.’ Instead what he did was rob them of their innocence and change the scope of their lives."
Wyatt had asked jurors to sentence Hall to probation or a minimal prison sentence, reminding them of witnesses, including Hall’s ex-wife and two of his daughters, who described him as a good father, coach and man. "He’s not the guy jumping out from behind a corner with a knife and sticking it to your throat. He’s not the guy pulling the trigger in the 7-Eleven, ending somebody’s life," Wyatt said. "He’s not the guy hiding in the back seat of a woman’s car to assault her. He’s not that guy."
Then prosecutor Christy Jack rose to tell jurors that Wyatt was "exactly right." "And that is why he is so much more dangerous — because he’s Mel Hall," Jack said. "Flamboyant. Charismatic. Everybody idolizes him. "That’s what makes him so very dangerous because you don’t see him coming, and parents are unsuspecting, and he preys on that time after time after time," she said.
June 17, 2009
A few notable comments from AG Holder in Senate testimony
Attorney General Eric Holder testified before the Senate Judiciary Committee today, and this link provides the text of his statement. The statement is long and does not have too much grist for the sentencing mill, though this paragraph (under the heading "civil rights") seemed worth spotlighting:
Another important element of strengthening civil rights is to ensure fairness in the administration of the criminal laws. The Department firmly believes that our criminal and sentencing laws must be tough, predictable, fair, and free from unwarranted racial and ethnic disparities. Public trust and confidence are essential elements of an effective criminal justice system – our laws and their enforcement must not only be fair, but they must also be perceived as fair. The perception of unfairness undermines governmental authority in the criminal justice process. This Administration is committed to reviewing criminal justice issues to ensure that our law enforcement officers and prosecutors have the tools they need to combat crime and ensure public safety, while simultaneously working to root out any unwarranted and unintended disparities in the criminal justice process that may exist. The Department’s work in this respect has already started with a sentencing working group that is being led by the Deputy Attorney General. The right to counsel is also an essential element of an effective and fair criminal justice system. The Department is concerned about the quality and availability of defense counsel for indigents, especially in this difficult economic time, and has begun to study proposals for improvement.
NASC Annual Conference as timely as ever
I am pleased to be able to highlight this year's National Association of Sentencing Commissions annual conference, which is held August 2-4, 2009 in Baltimore, Maryland. This year's conference is titled "15 Years of NASC: Looking Back, Moving Forward," but the program reveals how timely and forward-looking the program is for today's times. Everyone can check out the full agenda and the outstanding group of speakers for this year's NASC event here at the conference website.
MADD is mad about short Stallworth sentence
This post from the New York Times' NFL blog has lots of interesting follow-up concerning the short prison term given to NFL receiver Donte Stallworth in Florida for DUI manslaughter. The post links to this interesting news releasefrom the the Miami-Dade prosecutor, which stressed that the deal had "the full endorsement and consent of the Reyes family, who believe that this plea and its timing are in the best interest of their 15-year-old daughter, the sole remaining child of Mario Reyes [because] the provisions of this plea will provide closure to them and appropriate punishment for Mr. Stallworth’s conduct and the effects of his actions that night."
The post also noted that one of the provisions of the deal includes a forced donation to MADD, which the organization has said it will refuse. MADD also says it is "profoundly disappointed in the 30 day jail sentence for Donte Stallworth who killed a pedestrian while driving drunk." Of course, as the NYT post notes, in fact Stallworth will only have to spend 24 days behind bars because of earned-time credits.
Lawyer for Plaxico Burress making much of sweet plea deal given to other NFL receiver
As detailed in this New York Daily News article, the lawyer for Plaxico Burress has wasted no time highlighting that his client ought to be able to get a plea deal with sentencing terms that are as sweet as the terms in Donte Stallworth's plea deal (background here):
Donte Stallworth got 30 days in jail for killing someone driving drunk, while Plaxico Burress is facing 3-1/2 to 15 years in prison for shooting himself in the leg. And Burress' attorney, Benjamin Brafman, doesn't think that's fair.
In an interview Tuesday night on Sirius NFL Radio's Late Hits, Brafman made sure to point out the "real disparity" in those two cases involving NFL wide receivers - a disparity that's now part of his argument for leniency in Burress' victimless crime.
"Donte' Stallworth, who is I think a fundamentally decent man, took a plea in a DWI case in which someone was killed and the jail sentence there was 30 days," Brafman said. "There are other components to the sentence - there'll be probation and community service and house arrest - but they gave him 30 days and someone ended up dying. "In our case there is no victim. So I think I have a powerful argument as to why there should be a lenient sentence here. I just haven't gotten the district attorney to agree with me yet."
Burress, 31, is charged with criminal possession of a loaded and unlicensed weapon in Manhattan - a crime which carries a mandatory minimum sentence of 3-1/2 years. The case was adjourned for the second time on Monday and will resume on Sept. 23. Brafman said that if a grand jury decided to indict Burress and if a plea bargain isn't reached, a trial likely won't begin any earlier than 2010.
Stallworth, a receiver with the Cleveland Browns, was also facing a possible 15 years when he was arrested and charged with DUI manslaughter after he killed Mario Reyes while driving drunk in Florida on March 14. But yesterday, Stallworth reached an agreement to plead guilty to the charge and was sentenced to 30 days in jail, two years of house arrest (during which he can continue to play football), and eight years of probation. He also reportedly reached a financial settlement with the victim's family.
"To suggest that in Plaxico's case he should get a two-year sentence, when in a case where someone ends up dead they OK a 30-day sentence, there just seems to be a real disparity there," Brafman said.
I am intrigued to see Brafman going on the offensive here, though I think it is a wise effort to use a potent and prominent story of (undue?) leniency from a plea deal in an effort to force NY state prosecutors to be willing to consider a good deal for his client. More generally, because I think the Burress case can and should become a great Second Amendment test case, I am also pleased that Burress and Brafman are prepared to go to trial if they cannot get a favorable plea deal in this case. It will be interesting to see if the Stallworth outcome now makes it easier for Brafman to get Burress a better plea deal.
Some related posts on the Stallworth and Burress cases:
- "Main Threat to Burress Is a Sentencing Law"
- Starting to make the Second Amendment case for Plaxico Buress
- Interesting data on the application of NY gun law for Plaxico's consideration
- Talk of a plea deal to resolve gun charges against Plaxico Burress
- NFL player gets very short jail term for drunk driving killing
Lots of interesting discussion in Second Circuit's refusal to go en banc in federal capital case
The Second Circuit in a brief order today in US v. Fell, No. 06-2882 (2d Cir. June 17, 2009) (available here), denies en banc review of a federal death sentence. That simple decision generates a 35-page concurrence from Judge Raggi and a 24-page dissent from Judge Calabresi (and two other small dissents).
The work by Judges Raggi and Calabresi cover a wide array of important and interesting issues ranging from capital jury selection to prosecutorial discretion. Because I am on the road, I do not have time to comment on their debate beyond calling it a must-read for all sentencing fans. (Also, SCOTUS fans might also take note of the fact it appears that Judge Sotomayor opted not to join any of these opinions commenting on the denial of en banc review in Fell.)
"Majority of Leading Criminologists Find Death Penalty Does Not Deter Murder"
The title of this post is the heading to this new entry at the Death Penalty Information Center based on the publication of a new article now appearing in the Journal of Criminal Law and Criminology titled "Do Executions Lower Homicide Rates? The Views of Leading Criminologists." Here is the DPIC entry with links to more details:
Eighty-eight percent of the country’s top criminologists do not believe the death penalty acts as a deterrent to homicide, according to a new study published June 16 in Northwestern University School of Law’s Journal of Criminal Law and Criminology authored by Professor Michael Radelet, Chair of the Department of Sociology at the University of Colorado-Boulder. The study, “Do Executions Lower Homicide Rates? The Views of Leading Criminologists,” concludes: “Our survey indicates that the vast majority of the world’s top criminologists believe that the empirical research has revealed the deterrence hypothesis for a myth … [T]he consensus among criminologists is that the death penalty does not add any significant deterrent effect above that of long-term imprisonment.”
Missouri Supreme Court rules that federal sex offender registration requirement trumps state limits
This local article, headlined "Ruling to force sex offenders' names back on Missouri registry," provides a report on the significant impact of a ruling from the MIssouri Supreme Court concerning what sex offenders must register with the state:
Thousands of Missouri sex offenders will have to put their names back on the state registry after a ruling Tuesday by the state Supreme Court. The offenders — including roughly 600 in Jackson County alone — were wiped from the registry in late June 2006. The court at the time said the Missouri Constitution didn’t allow for laws to be enforced retroactively, so only offenders convicted after the law took effect in January 1995 had to comply.
But the state judges unanimously ruled Tuesday that sex offenders must obey a federal law that went into effect about a month after that 2006 ruling. The federal Sex Offender Registration and Notification Act requires all offenders, regardless of when they were convicted, to register. The federal law “imposes an independent obligation requiring respondents to register as sex offenders in Missouri,” the judges wrote.
Law enforcement authorities across the state, including Attorney General Chris Koster, applauded the ruling. Koster said the registry was designed to protect the community from offenders and the “court’s ruling supports that goal.” Former Jackson County Sheriff Tom Phillips, a defendant in a lawsuit filed by sex offenders, said the intent of the law was for all offenders to register, not just some. “I think that’s what people want,” Phillips said. “Hopefully now that will go into place. … If the laws weren’t clear as to who should and who shouldn’t register, this should clear that up.”
The court ruled Tuesday in the case of 10 convicted Jackson County sex offenders who argued that they were not required to register because of the Missouri Constitution’s protection against retrospective laws.
The brief opinion from the Missouri Supreme Court can be accessed at this link.
Are criminal defendants the "real losers" when judges are elected?
The National Law Journal has this interesting commentary discussing the impact of judicial elections on criminal justice, which is headlined "Only a partial win: The Caperton ruling, while welcome, does nothing to protect the real losers in judicial elections — criminal defendants." Here are excerpts:
In its recent decision in Caperton v. Massey, the U.S. Supreme Court declared that an elected state court judge must recuse himself from a case involving his largest campaign donor. The decision is a victory for common sense and fundamental fairness. Unfortunately, however, it cannot help the real losers in the 39 states that elect rather than appoint judges — those accused of crimes who rely on judges to protect their rights....
Again and again, judicial elections come down to accusations that an incumbent is soft on crime — and yet these allegations are usually made by corporate interest groups that don't actually care about a judge's record in criminal cases, and thus that are willing to paint even the most justified ruling in favor of a criminal defendant as a danger to the community.
The results are predictable. Studies show that elected judges become notably harder on criminal defendants as elections approach. Political scientists Gregory Huber and Sanford Gordon reviewed 22,000 Pennsylvania trial court sentences in criminal cases and discovered that, when elections were imminent, these judges imposed sentences 25% to 39% longer than judges who had recently been elected or re-elected to the position. Even more disturbing, similar studies show that judges are more likely to impose the death penalty with elections looming. These judges are getting the message that anything short of the harshest penalty will become fodder to be used against them in the next election cycle.
June 16, 2009
"DOJ's Attack on Federal Judicial Leniency, the Supreme Court's Response, and the Future of Criminal Sentencing"
The title of this post is the title of this great-looking new article appearing on SSRN from Professors Susan Klein and Sandra Guerra Thompson. Here is part of the piece's abstract:
The last few years have brought some equilibrium to the power struggle in the federal system between prosecutors, judges, and Congress over criminal sentencing. Though pieces of this story have been shared and various Supreme Court sentencing cases analyzed, our unique contribution is to explain how and why a true sentencing reform movement that began in the mid-1980's was co-opted by conservative politics at the federal level at the turn of this century, thereby eliminating one avenue of change entirely for all federal and state actors....
As a result of the last few terms, many of the recent victories that the Department enjoyed in the political arena it lost in the courts. Under the administration of Attorney General Alberto R. Gonzales, the Department continued its push for more stringent punishments, but changes in circumstances required a new approach. Congress considered and rejected new legislation that might constitutionally replicate DOJ's earlier coup. When DOJs Republican allies in Congress lost their majority position after the 2006 elections, the push for harsher punishments slowed considerably.
We expect Attorney General Eric Holder to back away from harsh sentencing laws and tight control over Assistant United States Attorneys (AUSA) in the field. We now see federal district judges sentence below the range provided in the federal sentencing guidelines with building frequently, yet not ignore the guidelines. Though states judges never suffered in the same manner, we expect state legislators to react to the new constitutional requirement by increasing state judicial discretion in sentencing through advisory rather than mandatory guidelines, and expanding judicial authority to stack sentences.
Bernie Madoff's many victims vent in letters to sentencing judge
As detailed in this New York Times article, headlined "Fraud Victims Want Maximum for Madoff," some victim of Bernie Madoff's ponzi scheme have had a chance to tell his sentencing judge what they think ought to happen to their least-favorite white-collar criminal. Here are a few details:
They are widows, retired schoolteachers, electrical contractors and Korean War veterans. Most had a strong message for the judge in charge of sentencing Bernard L. Madoff: impose the maximum sentence allowable by law.
In more than 100 letters and e-mail messages to Judge Denny Chin, victims of Mr. Madoff’s $65 billion Ponzi scheme described how their lives had been forever changed by the actions of a man they had trusted.
The letters, sent to the Federal District Court in Manhattan and released to the public on Monday, come ahead of Mr. Madoff’s sentencing on June 29. Eight of the victims, including one who has known Mr. Madoff personally for more than 20 years, asked Judge Chin for permission to speak at the sentencing.
More than two-thirds of the victims who wrote to the court were retirees or children of retirees who invested with Mr. Madoff more than a decade ago. Many said they had been forced to move in with relatives or look for jobs. Several letters expressed dismay with the Securities and Exchange Commission for failing to discover the fraud after being tipped off numerous times.
Many were brimming with anger directed at Mr. Madoff. “Sentence this monster named Madoff to the most severe punishment within your abilities,” wrote Randy Baird, a California lawyer. “We are too old to make up what we lost. We have to start over.”...
Some took issue with the portrayal of the fraud’s victims in the news media as being among the wealthy and privileged. “Many Madoff victims are elderly individuals or retirees who were saving for the future and they had the misfortune to believe in a powerful Wall Street insider who was repeatedly investigated and given a clean bill of health,” wrote Emma De Vito, 81, a widow from Chalfont, Pa., who lost her entire life savings to Mr. Madoff.
NFL player gets very short jail term for drunk driving killing
This updated article from the Miami Herald, headlined "Donte' Stallworth gets 1 month in jail, 2 years house arrest in DUI death," provides the latest celebrity sentencing news that gets me all riled up again about the leniency too often shown to drunk drivers. Here are the sentencing basics:
Accepting responsibility for the drunk-driving crash that killed a pedestrian on Miami Beach, NFL player Donte' Stallworth pleaded guilty Tuesday and was sentenced to serve one month in a Miami-Dade County jail. Stallworth, 28, was immediately taken into custody.
After he gets out, Stallworth will serve two years of house arrest followed by eight years' probation, according to his plea deal. He will also lose his driving privileges for life and have to perform 1,000 hours of community service.
Stallworth has also agreed to pay an undisclosed sum to the Reyes family. ''I will continue to bear this burden the rest of my life,'' Stallworth told Miami-Dade Circuit Judge Dennis Murphy, who imposed the sentence.
The Cleveland Browns wide receiver was charged with DUI manslaughter in the death of Mario Reyes, 59, a crane operator who was crossing the MacArthur Causeway on the morning of March 14 to catch the bus home when he was struck and killed.
Stallworth, driving a black Bentley, had a blood alcohol level of .126, well above the legal limit, according to prosecutors. He had been drinking at a posh Miami Beach nightclub earlier that morning.
Prosecutors filed formal charges June 4, and Stallworth had pleaded not guilty. The unusually speedy end to the case came at the urging of the Reyes family, which wanted to resolve the matter to avoid further emotional trauma.
In offering the deal, prosecutors considered Stallworth's clean driving record, remorse for Reyes' death and his cooperation with investigators.
This very short jail term strikes me as insufficient for killing someone while driving drunk, especially since drunk driving is a deterrable offense that ends lots of innocent lives unnecessarily. Though the house arrest and other parts of the sentence make the sanction more severe than just a month in jail, the message that will resonate with the average citizen is that the "price" of drinking and driving and killing is merely a month in jail. I wonder how many innocent lives this lenient sentence might cost as football fans now have even less of a reason to give much thought to finishing that extra beer before driving home after the big game.
I get aggravated about undue leniency in this context in part because because I represent clients sentenced to so much more prison time for doing what strikes me as a much less serious offense purportedly for the sake of general deterrence. Consider, for example, my client Weldon Angelos is now serving his sixth year of his 55-year sentence for dealing marijuana. Or consider the sentencing fate of other NFL players who committed seemingly less serious crimes: Michael Vick got years in federal prison for dog fighting and Plaxico Burress is facing years in state prison for shooting himself. But Donte' Stallworth gets only a month for killing an innocent pedestrian while drinking and driving.
Of course, the real back-story here seems to involve the victim's family being happy to get a (huge?) pay-off rather than a long prison term. As I often stress in other settings, some victims will prefer funds and finality to a long sentence. I do not begrudge the Reyes family for caring more about funds and finality in this setting, but I am troubled that prosecutors and the sentencing judge did not see the potential value of sending a more potent general deterrence message through a longer jail sentence in this case.
Some related posts on sentencing drunk drivers:
- Getting tougher on drunk driving
- Why do we worry so much more about sex offenders than drunk drivers?
- Technology versus toughness to combat drunk driving
- Undue leniency for drunk drivers?
- More discussion of leniency for drunk drivers
- Is capital punishment for drunk driving morally required?
- More examples of undue leniency shown to repeat drunk drivers
- Another drunk driving sentencing story we can follow on the sports pages
- NFL receiver charged with DUI manslaughter in Florida, while MLB pitcher gets wrist slapped in Nebraska
Long opinions affirming very long federal child sex abuse sentences
Any concern that federal judges are too lenient when sentencing those who abuse children sexually should be allayed by some very long sentences affirmed in two long circuit court opinions today.
From the Second Circuit, we get US v. Jass, No. 06-4899 (2d Cir. June 16, 2009) (available here), which affirms a 65-year sentence on a woman involved in the sexual abuse of two adolescent girl. (Her boyfriend, who was the father of one of the victims, got a sentence of 115 years.) From the Eleventh Circuit, we get US v. Sarras, No. 08-11757 (11th Cir. June 16, 2009) (available here), which affirms a 100-year sentence on a man involved in the sexual abuse of his step-daughter.
Both cases cover interesting sentencing issues following a long discussion of various other legal issues and after reporting the sordid facts of the crimes. The offenses in both cases are disturbing (the Jass facts are especially awful), so this is R-rated reading.
Though there is little to savor in these ugly cases, I must note that the defendant in Sarras was subject to an obstruction-of-justice guideline enhancement based on evidence that he "had manipulated his penis in the defense photos" submitted to support the defense's failed trial argument that the defendant was not the person appearing in certain pornographic pictures. In the future, lawyers advising federal defendants should be sure to warn clients that even improper penis manipulation can provide a basis for a sentence enhancement.