July 4, 2009
What to the American imprisoned is the Fourth of July?
Upon Randy Barnett's astute suggestion, I celebrated the Fourth of July this morning by reading Frederick Douglass's famed Independence Day oration from 1852, which was titled "What to the Slave is the Fourth of July?". The speech is remarkable for many reasons; it is not only a wonderful reminder of the forceful antebellum moral arguments against slavery, but it is also a fitting condemnation of those who failed to condemn slavery as inconsistent with the ideals of liberty and freedom expressed in the Declaration of Independence and in the US Constitution.
As Randy notes, historian Jonathan Bean in this piece at the National Review Online advocates for Douglass's themes to resonate through modern American politics. As Bean puts it:
[T]he words of the Sage of Anacostia remain not only relevant, but essential. Why? Douglass unfailingly opposed any man’s exercising control over another.... His principles are not the stuff of “New New Deals” but rather a brief for a “New Independence Day” based on small-government principles....
If today’s Republican party wants to move forward, it would do well to look backward, and it can begin by adding Douglass to the GOP’s annual Lincoln Day celebrations.... Democrats should also learn from Douglass....
On this Fourth of July, let us join Douglass in remembering that the Declaration of Independence laments the “swarms of Officers [who] harass our People and eat out their substance.” With new swarms of hungry officers gaining power in Washington, Douglass’s own declaration of independence offers an inspiring alternative.
I share Bean's eagerness to have both parties embrace Douglass's themes, but I approach those themes from a different perspective. As regular readers might imagine, I read Douglass's speech with my mind's eye on modern mass incarceration. Thus the title of this post, which asks what those currently imprisoned think about when seeing Americans celebrate their country's committment to liberty and freedom. Especially with US prison population starting to approach three million, these passages from Douglass's 1852 speech really stood out:
Fellow-citizens; above your national, tumultuous joy, I hear the mournful wail of millions! whose chains, heavy and grievous yesterday, are, today, rendered more intolerable by the jubilee shouts that reach them. If I do forget, if I do not faithfully remember those bleeding children of sorrow this day, "may my right hand forget her cunning, and may my tongue cleave to the roof of my mouth!" To forget them, to pass lightly over their wrongs, and to chime in with the popular theme, would be treason most scandalous and shocking, and would make me a reproach before God and the world....
What, to the American slave, is your 4th of July? I answer: a day that reveals to him, more than all other days in the year, the gross injustice and cruelly to which he is the constant victim. To him, your celebration is a sham; your boasted liberty, an unholy license; your national greatness, swelling vanity; your sounds of rejoicing are empty and heartless; your denunciations of tyrants, brass fronted impudence; your shouts of liberty and equality, hollow mockery; your prayers and hymns, your sermons and thanksgivings, with all your religious parade, and solemnity, are, to him, mere bombast, fraud, deception, impiety, and hypocrisy -- a thin veil to cover up crimes which would disgrace a nation of savages. There is not a nation on the earth guilty of practices, more shocking and bloody, than are the people of these United States, at this very hour....
You boast of your love of liberty, your superior civilization, and your pure Christianity, while the whole political power of the nation (as embodied in the two great political parties), is solemnly pledged to support and perpetuate the enslavement of three millions of your countrymen....
In [the US Constitution] I hold there is neither warrant, license, nor sanction of the hateful thing; but, interpreted as it ought to be interpreted, the Constitution is a GLORIOUS LIBERTY DOCUMENT. Read its preamble, consider its purposes.
Critically, any parallels to be drawn between slavery and mass incarceration must not be taken too far: thankfully, persons are now deprived of freedom in America only for illegal acts, not merely due to the color of their skins. Many persons in prison created victims; very few can legitimately claim to be mere victims. Nevertheless, even if we believe that the state should punish severely all serious wrongdoing, Douglass's strong accusation of American hypocrisy concerning liberty and freedom should still capture our attention in our modern era of mass incarceration.
Though our national monument is a "Statute of Liberty," the United States is now the world's leader in imprisonment by a considerable margin. (As Douglass might put it, there is not a nation on the earth currently confining more humans in cages than are the people of these United States, at this very hour.) Moreover, a significant number of persons in prison have good reasons to view "shouts of liberty and equality [to be] hollow mockery" given that the "drug war" has resulted in the denial of liberty to many minorities for various nonviolent behaviors.
As stressed above, I do not mean to assert or even suggest that mass incarceration is anywhere near the modern moral equivalent of slavery. But I do mean to encourage everyone, on this day of patriotic celebration, to consider whether it is time for all Americans who are truly committed to the principles of freedom and liberty to start working against the national stain of mass incarceration before it becomes as ugly or harmful as was the national stain of slavery.
July 3, 2009
Deep thoughts on freedom and liberty for the holiday weekend
These two new pieces appearing on SSRN seem like fitting reading for some deep reflections on freedom and liberty this holiday weekend:
Neoliberal Penality: A Brief Genealogy by Bernard E. Harcourt
Abstract: The turn of the twenty first century witnessed important shifts in punishment practices. The most shocking is mass incarceration — the exponential rise in prisoners in state and federal penitentiaries and in county jails beginning in 1973. It is tempting to view these developments as evidence of something new that emerged in the 1970s — of a new culture of control, a new penology, or a new turn to biopower. But it would be a mistake to place too much emphasis on the 1970s since most of the recent trends have antecedents and parallels in the early twentieth century. It is important, instead, to explore the arc of penality over a longer course: to relate recent developments to their earlier kin at the turn of the twentieth century.
What that larger perspective reveals is that the pattern of confinement and control in the past century has been facilitated by the emergence and gradual dominance of neoliberal penality. By neoliberal penality, I have in mind a form of rationality in which the penal sphere is pushed outside political economy and serves the function of a boundary: the penal sanction is marked off from the dominant logic of classical economics as the only space where order is legitimately enforced by the state. This essay traces a genealogy of neoliberal penality going back to the emergence and triumph of the idea of natural order in economic thought — back to the Physiocratic writings of François Quesnay and other economists during the 1760s. It is precisely their notion of natural order that metamorphosed, over time, into the modern idea of market efficiency that is at the heart of neoliberal penality.
Free Will Ideology: Experiments, Evolution and Virtue Ethics by John A. Humbach
Abstract: Free will could never have evolved in a world of ordinary biological forces. There is, moreover, substantial experimental evidence against it. This evidentiary situation is a serious moral concern because free will ideology plays a key role in justifying punishment in criminal law. People draw a sharp distinction between the suffering of innocents and suffering that is deserved. As a basis for criminal punishment, the very concept of just deserts usually presupposes that wrongdoers have a choice in what they do.
The essay proceeds from the assumption that hurting people is presumptively wrong and therefore requires justification. If this assumption is true, then the factual dubiousness of free will presents a serious problem for current penal practices. Because the evidence makes free will unlikely and the logic of evolution makes it impossible, an important underpinning of the criminal law appears to fail. A variant of free will, so-called compatibilism, does not solve or avoid the problem of justification. It seems on the contrary to be merely a repackaging of an ancient form of virtue-ethics under which people are deemed to deserve to suffer because they are what they are.
"Is 150 Years Appropriate, or Just Silly?"
The question in the title of this post is the headline of this effective column in the New York Times. The piece quotes lots of academics in an effort to help answer the question (including me), but I am even more eager to hear from readers of this blog.
Most recent Madoff sentencing posts:
- Madoff gets sentenced to max of 150 years in federal prison!
- A new white-collar benchmark: the main reason the number 150 matters in Madoff
- Should Bernie Madoff bother to appeal his sentence?
UPDATE: For additional takes on this question, one can now check out this blog-friendly column at the New York Times, headlined "Weekend Opinionator: Did Madoff Get More Than He Deserved?". The column quotes lots of Madoff-sentencing reaction around the blogosphere, and here is how the column gets started:
On Saturday America turns 233 years old, but the first chance Bernie Madoff will have to celebrate the Fourth of July as a free man will be the nation’s 383rd birthday. Before you enjoy any schadenfreude, however, remember that you and I are no more likely to make that party than he is. We will, however, have more room to roam in the interim.
July 2, 2009
"Judge Acquits Lori Drew in Cyberbullying Case, Overrules Jury"
The title of this post is the headline of this breaking report from Wired news. It is not clear to me that the judges has exactly "overruled" the jury, but rather just concluded as a matter of law that the charges against Drew could not be legally sustained. Whether this is activist judging or justice is an interesting question (and perhaps one that will be presented to the Ninth Circuit if prosecutors decide to appeal).
California Supreme Court rejects Apprendi challenge to using juve convictions as strikes
Apprendi fans have a lot worth reading today. In addition to my new little discussion of Apprendi-land in the Columbia Law Review's sidebar (discussed here), today the California Supreme Court has lots of Apprendi talk in People v. Nguyen, No. S154847 (July 2, 2009) (available here). Here is how the majority opinion starts:
California‘s Three Strikes Law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d))1 increases the maximum sentence for an adult felony offense upon proof that the defendant has suffered one or more qualifying "prior felony convictions" — a term that specifically includes certain prior criminal adjudications sustained by the defendant, while a minor, under the juvenile court law. Does the United States Constitution allow such use of a prior juvenile adjudication even though there was no right to a jury trial in the juvenile proceeding? Like the majority of recent decisions to address the issue, we conclude the answer is yes.
Here is how Judge Kennard's solo dissent gets started:
In California, a minor accused of a crime in a juvenile court proceeding — unlike a person accused in an adult criminal proceeding — has no right to a jury trial. The lack of that right becomes an issue when, as here, a juvenile court adjudication is based on one of certain statutorily specified felonies and later the juvenile, by then an adult, commits another felony. At that point, California's "Three Strikes" law comes into play. Because of the prior juvenile court adjudication, the sentence for the new felony conviction is doubled, as happened here; with two such priors, the prison term is a minimum of 25 years to life.
Central here is the United States Supreme Court‘s decision in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi), which holds that the federal Constitution requires a jury trial on "any fact" that increases the maximum penalty for a charged offense. Is that right violated when, as here, the additional punishment is imposed because of prior juvenile criminal conduct for which there was no right to a jury trial? The majority perceives no problem. I do.
July 2, 2009 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (3) | TrackBack
Judge Alex Kozinski cleared of misconduct (but my illegality concern is not addressed)
The blogosphere is buzzing with the news that the Third Circuit, which was tasked with reviewing misconducts complaint against Judge Alex Kozinski, has concluded its investigation via this just-released opinionin which Judge Kozinski is admonished for poor judgment, but cleared any official judicial misconduct. Specifically, effective coverage can already be found at Above the Law and How Appealing and Patterico's Pontifications.
Though the outcome of this matter strikes me as just right, I am a bit disappointed that the Third Circuit opinion and related commentary completely dodges the dicey question of whether any of the files possessed by Judge Kozinski might have technically been child pornography or illegal obscenity. The Third Circuit opinion notes that some content Kozinski had was "sexually explicit material [that] is undoubtedly offensive to many." Slip op. at 27. But nowhere does the opinion confront the (real?) possibility that this content was illegal to possess under federal law because it could fit the technical definition of child pornography or illegal obscenity under federal law.
I am not eager to assail Judge Kozinski for his behavior, but rather eager to highlight how expansive the technical definitions of child pornography and illegal obscenity can be under federal law. For that reason, I am not really surprised (bit still remain disappointed) that the Third Circuit and others are eager to dodge these issues altogether.
Some related posts:
Split Sixth Circuit panel upholds Tennessee's lethal injection procedures
Today in Harbison v. Little, No. 07-6225 (6th Cir. July 2, 2009) (available here), a (divided) Sixth Circuit panel declares that Tennessee's lethal injection protocol is constitutionally sound. Here is how the majority opinion starts:
Edward Jerome Harbison is a Tennessee prisoner under death sentence who has exhausted all appeals and was denied a writ of habeas corpus. In 2006, Harbison filed a complaint under 42 U.S.C. § 1983, challenging Tennessee’s lethal injection protocol. The district court granted judgment in favor of Harbison, holding that the protocol violated the Eighth Amendment. The state defendants (State) appealed, relying on the Supreme Court’s decision in Baze v. Rees, 128 S. Ct. 1520 (2008), which was decided after the district court decision in this case. Baze upheld Kentucky’s lethal injection protocol and held that a substantially similar protocol would not violate the Eighth Amendment. Finding Tennessee’s protocol substantially similar, we vacate the district court’s judgment and remand for further proceedings.
Here is the heart of the complaint about this ruling coming from Judge Clay in his dissent:
By failing to provide the district court with an opportunity to consider Tennessee’s protocol in light of Baze, the majority effectively usurps the district court’s role as a factfinder and decides an issue never presented to the district court: whether there are material differences between Kentucky’s and Tennessee’s lethal injection protocols. As a court of appeals, we are obligated to provide the district court with the first opportunity to receive evidence and rule on this question. Because I would remand this case for an evidentiary hearing in light of Baze, I respectfully dissent.
Second Circuit blesses future medical expense restitution in child porn sentencing
The Second Circuit has an intriguing little restitution ruling today in US v. Pearson, No. 07-0142 (2d Cir. July 2, 2009) (availalbe here). Here is how the opinion starts:
Defendant-appellant Abraham Pearson appeals from a judgment entered January 12, 2007, in the United States District Court for the Northern District of New York (McAvoy, J.) convicting him, following a guilty plea to multiple counts of producing, transporting, receiving, and possessing child pornography, and sentencing him, inter alia, to serve fifteen years’ imprisonment and to pay restitution to the child victims of his crime in the amount of $974,902. Because we conclude that the defendant has not waived his right to appeal the restitution amount, we are called upon to consider whether a restitution order pursuant to 18 U.S.C. § 2259 may include an amount for estimated future medical expenses, and, if so, whether the amount of restitution ordered, which included an estimate of the victims’ future medical expenses, is reasonable. We hold that a restitution order pursuant to 18 U.S.C. § 2259 may provide for estimated future medical expenses, but we find that the district court has not explained adequately its calculation of the restitution amount. Therefore, we vacate that portion of the judgment and remand for further sentencing proceedings limited to that issue.
Notably, the estimated future medical expenses at issue in this case concerned the need for lifetime counseling due to the the victims’ mental health issues resulting from their underage involvement in sexual activity induced by the defendant.
"Cyberbully" Lori Drew scheduled to be sentenced in federal court this afternoon
This AP article, headlined "Sentencing scheduled for Mo. mom in MySpace hoax," reports that the rescheduled sentencing of Loi Drew is slated for this afternoon. This ABCNews feature provides some of the pre-sentencing basics:
U.S. District Judge George Wu had earlier postponed Drew's sentencing, saying he wanted to review testimony by prosecution witnesses....
Drew was convicted in November of three misdemeanor counts of unauthorized access to computers for violating MySpace's terms of service. She was acquitted of more serious felony charges of intentionally causing emotional harm while accessing computers without authorization. She was charged in Los Angeles because MySpace's computer servers are based there.
Federal prosecutors charged Drew under the Computer Fraud and Abuse Act, which bans unauthorized access to computers and has previously been used to combat computer hacking, for violating MySpace's terms of service. Drew's lawyers and outside legal experts have argued that the unusual prosecution could broaden the scope of what's considered criminal conduct on the Internet.
As detailed in the posts linked below, there are lots of interesting issues for sentencing fans to be found in this controversial case:
- Friday forum: What sentence would you impose on Lori Drew, the MySpace bullying defendant?
- Juror says publicly that she wanted MySpace bullying defendant sent to prison
- Very different sentencing recommendations in the Lori Drew cyberbullying case
- Prosecutorial power, victims rights, sentencing judgments and judicial empathy
- Any last-minute predictions about the Lori Drew cyber-bullying case?
Interesting guideline debate in upcoming federal sentencing of Monica Conyers
This local article out of Detroit, headlined "Conyers sentence fires up debate," highlights the challenge of assessing financial figures under the federal sentencing guidelines in a high-profile public corruption case. Here are excerpts from this effective article:
Detroit City Council President Pro Tem Monica Conyers says she chose her words carefully on her TV show this week because "I don't want to go to jail." And although she pleaded guilty Friday to a five-year felony, the possibility exists she won't.
"I'm certainly going to make my best-case argument that she should receive a non-prison sentence," her Detroit attorney, Steve Fishman, said Wednesday. Fishman would not disclose the arguments he will make, saying he would make his case in a memorandum he will file in federal court before Conyers' sentencing in about three months. But there is disagreement over what federal sentencing guidelines should apply to Conyers, who announced this week she will resign Monday.
Even after that question is settled, federal judges are no longer bound by sentencing guidelines, so the sentence Conyers receives will be whatever U.S. District Judge Avern Cohn believes is appropriate. Cohn said when he accepted Conyers' guilty plea that prosecutors believe her guidelines exceed the maximum penalty for conspiring to commit bribery. That means that if Cohn sentences Conyers within the range calculated by prosecutors, she will get the full five years.
Fishman calculated a much lower guideline range for Conyers -- 30 to 37 months -- and can ask Cohn to sentence Conyers below that range. One apparent area of disagreement is the value of the benefit received -- a key component in calculating the sentencing guidelines.
The numbers prosecutors used to calculate Conyers' sentencing guidelines have not been released. But calculation worksheets for Rayford W. Jackson, her co-accused, show prosecutors used a $20-million-plus "benefit value." That large figure is based on the $1.2 billion value of the sewage sludge contract, rather than the bribe amount of $5,000 to $6,000 that Jackson admitted paying and Conyers admitted receiving....
Using the amount of the bribe in place of the amount of the contract would reduce the recommended sentence. Still, experts were skeptical Wednesday that Fishman could keep Conyers out of prison....
Frank Perry, director of investigations and public affairs for the Foundation for Ethics in Public Service in Raleigh, N.C., said he feels the crucial nature of Conyers' vote -- having changed her position from opposing to supporting the Synagro Technologies Inc. sludge deal in 2007 to allow it to pass 5-4 -- mitigates against a lighter sentence, regardless of the size of the bribe. "There's a growing sense of increasing the accountability of public officials by way of stiffer sentences," said Perry, a former FBI special agent who handled public corruption cases. "I believe that's the trend."
July 1, 2009
"Should Juries Be the Guide for Adventures Through Apprendi-Land?"
In this post a few weeks ago, I spotlighted the publication of this great new article by W. David Ball in the June 2009 issue of the Columbia Law Review, titled "Heinous, Atrocious, and Cruel: Apprendi, Indeterminate Sentencing, and the Meaning of Punishment." I was honored to have been asked by the CLR folks to write a response to Ball's piece in the CLR's great Sidebar section, and my piece is now available in pdf form at this link. My little article carries the same title as this post, and here is how it starts:
David Ball’s article, Heinous, Atrocious, and Cruel: Apprendi, Indeterminate Sentencing, and the Meaning of Punishment, merits a place on any top ten list of must-read pieces concerning the Supreme Court’s modern sentencing jurisprudence. Ball’s article is valuable not only for its fresh conceptual and functional perspectives on this jurisprudence, but also for its exploration of new and important regions of the sentencing universe. In particular, Ball’s take on the Supreme Court’s work in Apprendi v. New Jersey and its progeny is a major contribution because, as he adventures through what Justice Scalia once called “Apprendi-land,” he spotlights what this jurisprudential terrain could mean for parole decisionmaking, especially in California.
It is a pleasure to travel with Ball as he seeks to better understand the topography of Apprendi-land. I fear, however, that Ball’s impressive work places undue emphasis on a particular vision of juries which, while perhaps conceptually appealing, is functionally problematic. I am also troubled that, like other commentators and even many Justices, Ball allows an undue affinity for jury trial rights to dominate his view of Apprendi-land. I believe Ball and others should focus much greater attention on constitutional concepts other than the jury in their efforts to articulate and advance sound procedural rules for modern sentencing decisionmaking.
Lots of notable (and notably different) state death penalty headlines
There have been a number of interesting (and quite different) death penalty stories coming from the states this week. Here are some of the highlights as provided by these headlines and links:
From California, "Public hearing turns into passionate debate on death penalty"
From Georgia, "Troy Davis benefits as court recesses"
From Missouri, "Court appoints investigator in Clemons case"
From Nebraska, "Inmate seeks execution for 1973 killing"
From New Mexico, "New Mexico's Death Penalty Ban Goes Into Effect"
From North Carolina, "House committee narrowly approves Racial Justice Act; cost estimates released"
From Ohio, "Sentence of death affirmed by high court"
An international perspective on proportionality
I just saw via SSRN this paper coming from Australia titled "Proportionality in Sentencing and the Restorative Justice Paradigm: ‘Just Deserts’ for Victims and Defendants Alike?". Here is the abstract:
The doctrine of proportionality seeks to limit arbitrary and capricious punishment in order to ensure that offenders are punished according to their ‘just desert’. Proportionality goes some way toward achieving this ‘balanced’ approach by requiring a court to consider various and often competing interests in formulating a sentence commensurate with offence seriousness and offender culpability. Modification of sentencing law by the introduction of victim impact statements or the requirement that sentencing courts take explicit account of the harm done to the victim and community has generated debate, however, as to the extent to which offenders may be now subject to unjustified, harsher punishments.
This article proposes that in order to overcome the controversy of the modification of offender and victim rights in sentencing, sentencing courts adhere to a doctrine of proportionality which is explicitly sensitive to the needs of victims and offenders in a model of restorative justice that focuses on the consequences of crime as against the individual, rather than the state. The extent to which proportionality, as the current constitutive principle of Australian sentencing law, may be modified to better encourage a dialogue between victim and offender is discussed.
Eleventh Circuit addresses notice requirement for special release conditions
Sentencing proceduralists should be interested in the new opinion from the Eleventh Circuit in US v. Moran, No. 08-16987 (11th Cir. July 1, 2009) (available here). Here is how the opinion starts:
This appeal presents an issue of first impression: whether a defendant is entitled to notice before a district court may impose special conditions of supervised release to address a defendant’s proclivity to sexual misconduct when the crime of conviction did not involve sexual activity. Virgil Lee Moran, a convicted sex offender, was convicted of being a felon in possession of a firearm after officers discovered him living with his girlfriend and her minor daughter in violation of his terms of supervised release for an earlier conviction. Soon after officers discovered Moran in that residence, state officials charged him with failing to register as a sex offender. Moran argues that he was entitled to notice before the district court imposed special conditions of supervised release related to potential sexual misconduct. Moran also argues that there is no reasonable relationship between those special conditions and his conviction for being a felon in possession of a firearm. 18 U.S.C. §§ 922(g)(1), 924(e). In the light of the decision of the Supreme Court in Irizarry v. United States, 128 S. Ct. 2198 (2008), we conclude that no notice was necessary. We also conclude that the district court did not abuse its discretion in imposing the special conditions on Moran’s supervised release. We affirm.
Should Bernie Madoff bother to appeal his sentence?
The question in the title of this post is prompted by this new article in USA Today, which is headlined "Appeal of Madoff's 150-year sentence wouldn't matter." Here is a big part of an effective article:
Bernard Madoff has potential legal grounds to appeal his 150-year prison sentence, but the chances are slim that he could avoid dying behind bars for bilking thousands of investors in a massive Ponzi scheme, sentencing experts said Tuesday.
Federal guidelines state that criminal penalties should be "sufficient but not greater than necessary" to reflect the seriousness of the offense, promote respect for the law, ensure just punishment and provide adequate deterrence of criminal conduct.
In imposing the maximum allowed sentence Monday, U.S. District Judge Denny Chin cited the "extraordinarily evil" nature of an at least $13 billion scam that victimized investors and institutions rich and poor, exacting "a staggering human toll." The judge also cited deterrence, saying, "The symbolism is important here because the strongest possible message must be sent to those who would engage in similar conduct ... that they will be punished to the fullest extent of the law."
Madoff defense attorney Ira Lee Sorkin called the sentence "absurd" in an NBC Today show appearance Tuesday. "There's nothing in the sentencing guidelines that talks about making symbols of people," he said. Sorkin said in a subsequent interview he had not decided whether to appeal.
Mark Allenbaugh, a former attorney for the U.S. Sentencing Commission, said if he represented Madoff he'd argue the penalty "was unreasonable on its face" because it was disproportionate to sentences in most other major white-collar-crime cases....
But a higher court would likely uphold the sentence, because Chin "spoke to the issues" in the guidelines, said Alan Ellis, a National Association of Criminal Defense Lawyers past president in California who specializes in federal sentencing and prison issues. "The sentence was designed to send a deterrence message around the world," said Ellis. "And it has."
But, if an appeals court ruled the term unreasonable, it would send Madoff, 71, back to Chin for re-sentencing. Pointing to his age, the experts said even reducing his sentence to the 50 years recommended by probation officials would still represent a life term. "There's a slim chance he'd win the battle," said Allenbaugh, "but he'd lose the war."
Most recent Madoff sentencing posts:
- Madoff gets sentenced to max of 150 years in federal prison!
- A new white-collar benchmark: the main reason the number 150 matters in Madoff
June 30, 2009
Notable new article on "Appellate Review of Sentence Explanations"
I see from this post at Prawfs that Michael O'Hear has another important new piece on SSRN about sentencing explanations. This new piece is titled "Appellate Review of Sentence Explanations: Learning from the Wisconsin and Federal Experiences," and here is the abstract:
For at least half a century, reformers have urged American appellate courts to play a more active role in the sentencing process. Outside a small number of jurisdictions with binding sentencing guidelines, however, the appellate courts have generally failed to establish a meaningful role for themselves.
The present article focuses on one particular function that appellate courts might usefully perform: that is, reviewing the adequacy of the explanations given by trial-court judges to justify their sentencing decisions. Such “explanation review” is conceptually distinct from substantive review of the sentence: the former asks whether the sentence has been adequately justified, while the latter asks whether the sentence could be adequately justified. As a matter of formal doctrine, explanation review is already an accepted feature of the sentencing law in several jurisdictions. But courts have struggled to give the explanation requirement coherent content, and few sentences are actually overturned on the basis of inadequate explanation. The difficulties may stem, in part, from the courts’ failure to appreciate what may be achieved through rigorous explanation review.
Against this backdrop, the purposes of the present article are threefold. First, the article makes the case for robust explanation review, identifying several useful purposes that are plausibly served by a systematically enforced explanation requirement. Second, the article describes and critiques the explanation review jurisprudence in two specific jurisdictions, Wisconsin and the federal system. Finally, drawing on the best parts of the Wisconsin and federal case law, the article proposes a set of principles that may be used to give explanation review more precise and rigorous content.
Another stiff sentence for a Ponzi schemer
Perhaps this local sentencing story reflects the echo effect of Bernie Madoff getting maxed out at his federal sentencing:
It may not be as wide-ranging as the theft orchestrated by Wall Street investor Bernard Madoff, but the $6 million stolen by Glyn Richards still destroyed dozens of lives. So for his crimes, Richards will spend 30 years in federal prison.
Richards, 45, pled guilty last year to setting up a fake freight company: All Freight Logistics, Inc. in Audubon, N.J. From that office, he ran a Ponzi scheme that bilked more than 100 investors out of $5.8 million. In exchange for a hefty buy in — ranging from $25,000 to more than $100,000 — prosecutors say Richards promised his investors quick and big returns. He told them he was about to land a government defense contract....
Nearly a year after he pleaded guilty, dozens of victims packed the courtroom to hear Richards' sentence. Several made impassioned pleas for the judge to issue the maximum sentence.
In a move that surprised even prosecutors, Renée Marie Bumb went beyond the federal guidelines in handing Richards 30 years. She said it was "one of the most despicable crimes imaginable."
"It doesn't take a life — like a violent crime does, but it does destroy life," Bumb said. "I think you are a con man. You have been and you always will be. I think you'll be pulling a scam when you walk out the gates of prison."
Seventh Circuit rejects broad-side attack on child porn guidelines
The Seventh Circuit today handed down an intriguing little per curian opinion dealing with the federal child porn guidelines in US v. Huffstatler, No. 08-2622 (7th Cir. June 30 2009) (available here). Here are the choice quotes:
[W]e need not ultimately decide whether Kimbrough gives district courts the discretion to disagree with the child-pornography guidelines on policy grounds, because Huffstatler does not contend that the district court abused its discretion. See United States v. Taylor, 520 F.3d 746, 747-48 (7th Cir. 2008). He argues instead that the methodological flaws that supposedly run through the child-pornography guidelines invalidate them entirely. Thus, he submits, not only may a district court sentence below the child-exploitation guidelines based on policy disagreements with them, it must.
Huffstatler’s stance is untenable. His argument is based on analogy to the crack guidelines, yet those guidelines remain valid, even after Kimbrough. See United States v. Roberson, 517 F.3d 990, 995 (8th Cir. 2008). Judges are not required to disagree with them; a within-guidelines sentence for a crack offense may be reasonable. Id.; see also United States v. Lopez, 545 F.3d 515, 516-17 (7th Cir. 2008) (affirming a within-guidelines sentence for possession with intent to distribute crack). The child-exploitation guidelines are no different: while district courts perhaps have the freedom to sentence below the child-pornography guidelines based on disagreement with the guidelines, as with the crack guidelines, they are certainly not required to do so. Because the district court was not obligated to sentence Huffstatler below the range recommended by valid sentencing guidelines, Huffstatler cannot establish error, let alone plain error.
Latest FSR issue, "On the Shoulders of Giants," now available on-line
I am very pleased to report that the latest issue of the Federal Sentencing Reporter is available on-line. The issue is titled "On the Shoulders of Giants," and Professors Steven Chanenson and Marc Miller were the the chief editors who assembled a great set of articles honoring the gigantic sentencing reform work done by Marvin Frankel and Daniel Freed and Norval Morris in their careers.
The Table of Connects for this latest FSR issue can be accessed at this link, and all the articles are available electronically here . (A full subscription to the Federal Sentencing Reporter can be ordered on-line here.) Here is a portion of the Editors' Notes that preview the issue and notes the event that inspired it:
This issue celebrates a professional milestone for this journal and expresses the personal joy of long and close friendships for those of us at the Federal Sentencing Reporter.
In August 2008, in our twentieth year of publication, FSR cosponsored our first symposium in honor of sentencing giants Daniel J. Freed and Norval R. Morris. This issue adds coverage of sentencing giant Judge Marvin Frankel. The symposium was integrated into the Annual Conference of the National Association of Sentencing Commissions (NASC), which benefited at that time from the able leadership of Jack O’Connell, Jr., the long-serving director of the Delaware Statistical Analysis Center. The symposium could not have happened without the full partnership and support of three institutions — NASC, our intellectual home and publishing partner the Vera Institute of Justice (in New York), and the excellent Stanford Criminal Justice Center.
The Stanford Criminal Justice Center, based at Stanford Law School, is run by the brilliant team of Bob Weisberg and Kara Dansky. Working from a sustained effort to fix California’s troubled systems of sentencing and punishment, they have made the search for wisdom in other systems and through the interaction of scholars, legislators, judges, and other policy actors a hallmark of the center. Weisberg and Dansky recognized that this approach echoes through the careers of Freed and Morris.
It was particularly fitting for the NASC Conference to be the setting for these remarks. NASC is a unique organization that comprises people interested in sentencing and includes members and staff of sentencing commissions, judges, public officials, lawyers, academics, and other practitioners. It is one of the few places where people from these varied — but interdependent — backgrounds meet and exchange ideas. Most of the contributions in this issue stem from this symposium.
Other recent FSR issues:
- FSR Issue 21.3: "Second Look" Sentencing Reforms
- FSR Issue 21.2: Sex Offenders: Recent Developments in Punishment and Management
- FSR Issue 21.1: Thoughts for the U.S. Sentencing Commission
- FSR Issue 20.5: American Criminal Justice Policy in a "Change" Election
- FSR Issue 20.4: Debates and Realities Surrounding Crack Retroactivity
- FSR Issue 20.3: White-Collar Sentencing
- FSR Issue 20.2: Prisoner Reentry
Should SCOTUS or USSC resolve circuit split on who counts as a fraud victim?
The National Law Journal has this new piece noting a circuit split over who counts as a victim for a guideline enhancement in fraud cases. The article is headlined, "Circuits split on sentencing for financial fraud — At issue is whether people who are reimbursed for financial losses from criminal schemes should be counted as victims," and here are snippets:
The U.S. Court of Appeals for the 1st Circuit last Friday waded into a growing circuit split over how tough judges can be on defendants accused of financial fraud. At issue is whether judges should count people who are reimbursed for financial losses from criminal schemes as victims when deciding whether to increase a defendant's sentence.
In a pair of opinions, Judge Kermit V. Lipez, writing for unanimous 1st Circuit panels, upheld 72-month sentences for defendants who were accused of stealing debit card numbers, personal identification numbers, credit card numbers, and ultimately money, from customers of Stop & Shop supermarkets in Rhode Island. The cases are United States v. Stephanian and United States v. Ter-Esayan.
Federal sentencing guidelines allow for a sentence enhancement for financial crimes like embezzlement and fraud if there are more than 250 victims. Regarding defendant Mikael Stephanian, Lipez concluded that "the card holders bore the first part of the total losses before the funds were restored" and were unable to access the money the defendants withdrew from their account for a period of time....
That's in line with a 2005 ruling by the 11th Circuit in United States v. Lee, which considered reimbursed persons as victims. Lipez wrote that the court was rejecting the position of the 6th Circuit in a case, United States v. Yagar, that account holders did not suffer "actual pecuniary harm" because they got their money back. He noted similar rulings by the 3rd, 5th, 9th and 10 circuits.
Pat Harris of Los Angeles-based Geragos & Geragos, who represented Arman Ter-Esayan in the appeal, said he and his client are disappointed because so many circuits ruled the other way. "There's a real split in the circuits," Harris said. "I think at some time the Supreme Court is going to have to take a look at this. When you've got this prominent of an issue, at some point there's going to have to be some clarification."
Especially since the federal sentencing guidelines are supposed to help achieve nationwide consistency in sentencing law and policy, I agree that this circuit split needs to be resolved ASAP. But, because the split involves a guideline interpretation issue, it is not clear that the Supreme Court must or even should be primarily in charge of providing needed clarification. As the Supreme Court noted in the (too rarely discussed) Braxton case at the outset of the guideline era, it may make more sense for the US Sentencing Commission to resolve these issues through guideline amendments than for the Supreme Court to deal with the issue via adjudication.
One of my very first articles, Sentencing Commission as Guidelines Supreme Court: Responding to Circuit Conflicts, 7 Federal Sentencing Reporter 142 (1994), talked through this issue of who should respond to these kinds of conflict. In that piece, I highlighted some of the pros and cons of the USSC rather than SCOTUS being primarily in charge of dealing with these kinds of issues. And I continue to be unsure whether in general or in this particular fraud setting who should take charge of these kinds of splits.