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July 18, 2009

Continuing the acquitted conduct debate and urging SCOTUS engagement

This recent post noting Judge Bright separate opinion reiterating forcefully his view that acquitted conduct sentencing enhancements are unconstitutional has generated a dynamic debate in the comments about both the law and policy of a judicial decision to increase a defendant's sentence based on evidence of conduct that a jury determined was insufficient for a formal conviction.  Because there is so much to worthy of saying in this arena, I have done this post to foster continued dialogue.

One topic of particular concern for me (and it seems also for Judge Bright) is the Supreme Court's disinclination to fully engage this consequential federal sentencing issue.  Back in 1997 when the Supreme Court formally addressed this issue in Watts, it did so through an opaque per curiam summary reversal.  I have long thought the Justices' choice to deal with this important issue in summary fashion was highly suspect, and Justice Kennedy in Watts even called out his colleagues for failing to place the case on the regular argument calender.

Now, a dozen years later, we have had the rulings in Jones and Apprendi and Blakely and Booker and Cunningham raise new questions and concerns about the vitality and reach of Watts as a constitutional ruling.  In addition, even if acquitted conduct enhancements are still constitutionally permissible, there are challenging questions about the statutory soundness of such sentencing enhancements in light of the instructions of 3553(a) and the appellate review standard of reasonableness.  And yet, despite a number of distinct cases raising this issue since Booker, the Supreme Court has denied cert again and again.  Whatever one thinks of the merits of this issue, isn't it problematic and worrisome (and perhaps telling) that the Supreme Court seems eager to avoid dealing with this issue head on?

July 18, 2009 in Procedure and Proof at Sentencing | Permalink | Comments (22) | TrackBack

One more take on Sotomayer and the status of the Second Amendment

Today's edition of the Wall Street Journal includes this editorial headlined "Second Amendment Confidential: Sotomayor takes the Fifth on gun rights." Here are excerpts:

Now making their way to the Court are cases about whether the right to bear arms also applies to the 50 states via the Due Process Clause of the Fourteenth Amendment.  If it doesn't, then Heller is a hollow shell....

The Fourteenth Amendment was drafted in part to address the rights of freed slaves to carry a weapon against the efforts of some Southern states to proscribe that right.  Coming as the right to bear arms does in the Bill of Rights only after the freedom of speech, we think there's little doubt the Founders considered the Second Amendment "fundamental" enough to apply everywhere.

Judge Sotomayor has said that it would be appropriate to recuse herself from any rehearing of Maloney v. Cuomo by the Supreme Court, but this week she stopped short of promising to do so. Our guess, based on her history, is that she'll vote like the Court's four liberals who dissented in Heller and say gun rights don't apply to the states.

I am not sure that Judge Sotomayor's votes on these issues are so predictable, especially because many so-called liberals are eager to have a robust incorporation doctrine.  Moreover, as I have stressed in lots of prior posts, if the Founders truly "considered the Second Amendment "fundamental" enough to apply everywhere," I would also think they would have considered the Second Amendment "fundamental" enough to apply to everyone, including former felons and misdemeanants who have so far been left out of serious critical discussion of the Second Amendment's reach and limits.

Some related Second Amendment posts:

July 18, 2009 in Second Amendment issues | Permalink | Comments (23) | TrackBack

July 17, 2009

Another significant downward variance in federal child porn sentencing

This local story from DC, headlined "Former NPR editor gets no prison time in child porn case," reports on yet another notable federal child porn sentencing oucome. Here are the basics:

The former NPR science editor who pleaded guilty to downloading videos of young children being raped will not have to spend any time in prison, a federal D.C. judge ruled Thursday.

Cheers, tears and claps erupted in the packed courtroom when U.S. District Court Judge Ellen Huvelle announced she was going to spare David Malakoff from the six to eight years in prison that he was facing based on federal guidelines. "I say, 'What further pound of flesh is needed to achieve the goal of punishment?'" asked Huvelle.

In explaining the exceptional step of sentencing below the guidelines, the judge said Malakoff had already thrown away a successful career and has to live with the stigma of being a sex offender for most of the rest of his life.  But the strongest argument for the lesser sentence, Huvelle said, was that Malakoff had been raped as a 9-year-old boy and he had looked at the child pornography over five hours last year to relive his own rape.

Malakoff admitted to downloading eight videos on his National Public Radio laptop while in Pittsburgh. The images, which contained violent sexual acts against children younger than 12 years old, were viewed over about five hours. Technical workers at NPR discovered them last summer after Malakoff took the laptop to them for repair.

Huvelle ordered Malakoff to five years probation, a fine of $5,000, 600 hours of community service, and he will have to register as a sex offender for 25 years.

July 17, 2009 in Sex Offender Sentencing | Permalink | Comments (18) | TrackBack

Ohio board recommends clemency in capital case based on co-defendant disparity

In the federal sentencing system, defendants often point to lesser sentences given to co-defendants in order to argue for lower sentences themselves.  As detailed in this local state capital sentencing story, the concept of co-defendant disparity this week prompted the Ohio parole board to make a recommendation of clemency for a defendant slated to be executed in August. Here are the basics:

The triggerman in a 1995 murder-for-hire scheme should be spared execution because other members of the plot were just as guilty, the Ohio Parole Board said Friday in a rare ruling in favor of mercy.  The board ruled 5-2 in favor of clemency for Jason Getsy, 33, scheduled to be executed Aug. 18 for the murder of 68-year-old Ann Serafino, of Hubbard.

Getsy was also convicted of the attempted murder of Serafino's son, Charles, who was the target of the scheme. Getsy and other participants did not expect Ann Serafino to be home the night of the shooting.

The board singled out the life sentence for John Santine, who initiated and organized the crime, saying Santine appeared to be just as guilty as Getsy. Santine, 48, is serving a sentence of 35 years to life. "In imposing a death sentence, it is imperative that we have consistency and similar penalties imposed upon similarly situated co-defendants," the parole board said.

The board noted that prosecutors downplayed Santine's influence during Getsy's trial but made that influence the primary theory behind the crime during Santine's trial. Two board members voted against clemency, saying nothing requires a comparison of Getsy's sentence to that of Santine. "So, because Santine was not given the sentence that some think he deserves, we should recommend a change in Getsy's sentencing that some think he deserves?" said board members Ellen Venters and Bobby Bogan.

Trumbull County Prosecutor Dennis Watkins denounced the decision, calling Getsy a cold-blooded murderer who bragged about killing Ann Serafino. "It's not fair and it undermines a just verdict, in this particular case, an actual killer who maliciously killed a woman in her home in execution style," Watkins said....

Gov. Ted Strickland, who has the final say, will review the case thoroughly, spokeswoman Allison Kolodziej said Friday.

A three-judge panel of the 6th U.S. Circuit Court of Appeals threw out Getsy's sentence in 2006 as arbitrary. The full 6th Circuit reinstated the sentence in 2007 in a divided 8-6 ruling.

Favorable clemency recommendations are rare in Ohio, which has executed 30 men since 1999, with another execution likely Tuesday.

July 17, 2009 in Clemency and Pardons | Permalink | Comments (3) | TrackBack

"Feds seek to appeal 'unreasonable' Fumo sentence"

The title of this piece is the headline of this new article suggesting that the story concerning the a recent high-profile white-collar sentencing is not quite over:

Federal prosecutors stung by this week's 55-month sentence for a long-powerful Pennsylvania lawmaker in a sprawling corruption case will seek to appeal the ruling. Prosecutors call Vincent Fumo's term "unduly lenient and unreasonable" and plan to ask the Justice Department to sign off on an appeal.

Fumo, a Philadelphia Democrat who amassed vast power during 30 years in the state senate, was sentenced Tuesday for misappropriating millions from the coffers of the state senate and two nonprofits. "In opinion articles, letters to the editor, e-mails, blog postings, and a flood of phone calls to our office and, we believe, to this Court, thousands of citizens expressed their dismay at the unduly lenient sentence imposed on Fumo," prosecutors wrote in court papers filed Friday....

Fumo, 66, is due to report to prison on Aug. 31. He must also pay $2.4 million in restitution and fines.  Prosecutors argued that he defrauded the senate and charities of more than $4 million.  They disclosed their plans to appeal in a sentencing memo filed Friday for co-defendant Ruth Arnao, who faces sentencing Tuesday on 45 counts.

Needless to say, I am intrigued to see the Government's reference to "blog postings" in its account of the public dialogue concerning Fumo's sentence.

Recent related posts:

July 17, 2009 in White-collar sentencing | Permalink | Comments (11) | TrackBack

Judge Bright urges SCOTUS attention to acquitted conduct enhancement

In US v. Papakee, No. 08-2032 (8th Cir. July 17, 2009) (available here), Judge Bright writes separately to a panel opinion affirming a long sentence in a sex offense case in otder to reiterate forcefully his view that acquitted conduct enahncements are unconstitutional.  Here is part of his effort:

I concur, rather than dissent, because I am bound by prior decisions of this circuit that expressly permit a district court to use acquitted conduct at sentencing.... But I am aware of no post-Booker authority from the Supreme Court that authorizes the use of acquitted conduct.[FN3]

Not long ago, I wrote extensively that the use of acquitted conduct violates the Sixth Amendment. See United States v. Canania, 532 F.3d 764, 776 (8th Cir. 2008) (Bright, J., concurring) (noting the Supreme Court’s affirmation of the centrality of the jury in the criminal-justice system and that “[a] judge violates a defendant’s Sixth Amendment rights by making findings of fact that either ignore or countermand those made by the jury”).  I also believe that use of acquitted conduct to enhance a sentence violates the Due Process Clause of the Fifth Amendment. See id. at 777 (Bright, J., concurring) (“[T]he consideration of ‘acquitted conduct’ undermines the notice requirement that is at the heart of any criminal proceeding.”).

I will not repeat here my concurrence in Canania.  But I will reiterate that “the use of ‘acquitted conduct’ at sentencing in federal district courts is uniquely malevolent.” Id. (Bright, J., concurring). We must end the pernicious practice of imprisoning a defendant for crimes that a jury found he did not commit. It is now incumbent on the Supreme Court to correct this injustice.

[FN3] And in United States v. Booker, 543 U.S. 220, 240 (2005), the Supreme Court correctly characterized United States v. Watts, 519 U.S. 148, 157 (1997) as holding only that “the [Fifth Amendment’s] Double Jeopardy Clause permitted a court to consider acquitted conduct in sentencing a defendant under the Guidelines.”  But our court has interpreted Watts’s narrow holding as applying to the use of acquitted conduct more broadly.  See, e.g., United States v. Whatley, 133 F.3d 601, 606 (8th Cir. 1998).  It is clear to me that the myth of Watts has outgrown its actual holding.  Stated plainly, Watts does not immunize the use of acquitted conduct from a challenge under the Sixth Amendment or the Due Process Clause of the Fifth Amendment.

July 17, 2009 in Procedure and Proof at Sentencing | Permalink | Comments (30) | TrackBack

Potent response to DOJ account of federal child porn sentencing

I noted last week in this post that the Department of Justice had produced this extended response to this ABA Journal articleon the debate over federal child porn sentencing.  One target of the DOJ response was Federal Public Defender Troy Stabenow, who wrote this very influential analysis of the federal child porn sentencing guidelines. 

Troy has written a response to the ABA Journalconcerning the DOJ account of the child porn guidelines, which asserts that the DOJ document makes a "straw-man argument [that] misrepresents the issue, grossly distorting my position into one that I would never make, let alone support."  Troy's full letter can be downloaded below, and here are excerpts:

The debate within our system is not whether to prosecute, it is generally how many decades of prison time an offender will serve. The DOJ may hope that by misrepresenting my argument, and citing extreme cases as the norm, this debate will go away.  But, the only reason the DOJ responded so swiftly to Mr. Hansen's piece was that the ABA Journal touched a nerve rubbed raw by repeated criticism from judges, commissioners, scholars, officials, and concerned members of the public.  I trust that anyone who takes the time to read my article will, at the very least, be troubled by the process behind the system.

As a parent, a citizen, and a long-time prosecutor for the U.S. Army (Reserves), I have consistently supported appropriate prosecutions and sentences for child pornographers as a path towards fighting child abuse.  I simultaneously support the proposition that American justice requires sentences based on empirical research and study, not fear-mongering and hysteria.  Support for considered sentencing does not equate to the endorsement of child exploitation, no matter how much certain officials might like to paint the issue that way.  Child pornography is an emotional issue, and for that reason, the political whims of certain activists and politicians were indulged to a greater extent in the creation of this guideline than in any other.  A review of the Sentencing Guidelines reveals absurd differences -- lower punishments for people who attempted to engage children in sex acts than for those who only possessed and swapped pictures.  On a broader level, the obvious irrationality of this guideline allows the public an inner-look at the mechanisms behind our entire federal sentencing structure.  The understandable zeal with which officials try to protect children leads some to paint any criticism of the sentencing system as an assault on the safety of our children.  Support for considered sentencing however does not equate to the endorsement of child exploitation, no matter how much certain officials might like to paint the issue that way.  Their argument presumes that we can use the fact of looking at pictures as a proxy for knowing that these defendants are molesters.  Their argument also presumes that we can only protect our children by using secret, manipulated sentencing rules.  I do not agree with either assumption.  We don't have to accept an ends-justify-the-means system. We can fashion a system that protects our children, punishes people for what they have done and upholds our American ideals of fair, transparent justice.  

Download Stabenow letter to ABA

Some related federal child porn prosecution and sentencing posts:

July 17, 2009 in Sex Offender Sentencing | Permalink | Comments (3) | TrackBack

Comparing white-collar apples and drug dealing oranges at sentencing

This local article, headlined "Lawyers question Fumo's sentence: The former state senator appears to have gotten off easy for misusing $2.4 million in taxpayers' money, defense attorneys and prosecutors say," highlights the challenges of making sentencing comparison between different types of crimes involving different types of offenders.  Here are excerpts:

Former state Sen. Vincent Fumo should consider himself lucky that he was convicted of misusing more than $2.4 million in taxpayers' money and not of selling crack cocaine. He'd likely have gotten far more than the 4.5-year federal prison term he received Tuesday had he been caught selling crack. With credit for good behavior, Fumo, 66, a multimillionaire political power broker from Philadelphia, could walk out of prison in 2013.

Joseph J. Moore, 23, faces a longer haul. He lacks Fumo's cash and political clout and won't finish his 20-year federal prison term on a drug conviction until 2029. Moore was in a car with three men who tried to buy $6,000 worth of crack cocaine from a police informant....

"How do you reconcile [someone] who possesses or sells crack cocaine and receives a sentence of 20 years in a federal penitentiary with the sentence that Fumo received?" asked Harrisburg lawyer Brian Perry, who represents drug defendants in federal court. "How is that justice when a senator convicted of 137 felony counts receives a sentence below the guidelines range?" he asked. "It sends a message that the system isn't fair and that everyone is not treated equally and, unfortunately, many people feel that way."...

Cumberland County District Attorney David Freed said that although he doesn't know all the considerations behind Fumo's sentence, "it seems light to me."...  Still, comparing county prosecutions to Fumo's case is difficult because federal sentencing guidelines are so different, he said....

Perry said Fumo's case stands out more because he didn't admit his guilt. "When these people I represent every day are getting 12, 15, 20 years, this guy goes through a trial, does not accept responsibility, gets convicted and gets a sentence below the guideline range, I think the harm it does is that it emphasizes that the system does not treat everyone the same," Perry said....

Dauphin County Public Defender Kenneth A. Rapp cited the same unbalanced scenario and called the "favorable sentence" Fumo received a "great cause for concern." "It is a glaring example of the disparate treatment for an individual who clearly has all the tools and resources at his disposal versus a less-privileged person who doesn't enjoy those same benefits and who commits far less serious acts, yet pays a much steeper price," Rapp said.

July 17, 2009 in Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack

July 16, 2009

It's a bird! It's a plane! ... No it's Sotomayor!!!

The title of this post is inspired by the headline of this new commentary at CNN, "Sotomayor the crime fighter."  The commentary is by Anthony S. Barkow, the executive director of the Center on the Administration of Criminal Law at NYU School of Law, and here are excerpts from an effective piece:

If she is confirmed, she would be the only justice with experience as a local prosecutor. For five years, Sotomayor was an assistant district attorney in Manhattan. In that position, she interacted with some of the poorest, most troubled residents of New York and handled matters ranging from shoplifting, prostitution and petty drug offenses to robberies, child abuse and murders.

Sotomayor's experience on the front lines in a big city's fight against crime will bring a much-needed perspective to the court.  Only Justice Samuel Alito has any real background at all in criminal law. He was an assistant U.S. attorney and was later U.S. attorney in New Jersey.

It's quite likely that, as a result, Alito may have disproportionate influence on his colleagues in criminal cases because he can refer to that experience.  But Alito was never a local prosecutor and has deep exposure only to federal criminal law.  Federal criminal cases make up only about 6 percent of all criminal cases, and they typically involve complex white-collar crimes and large-scale narcotics trafficking.

Federal prosecutors do not typically see the day-to-day carnage in neighborhoods from murders, rapes, burglaries, robberies and assault, or interact with the victims of those crimes.  Nor do they see low-level vice crimes such as prostitution, small-time drug deals or gambling.   The other justices are even further removed from the realities of street crime....

Sotomayor would bring a much-needed dose of reality when it comes to criminal law issues.  It is all too easy for someone who has not spent time working on these issues to caricature them.  For conservatives, the risk is assuming all crimes are a failure of personal responsibility that lead to serious breaches of public order and demand incarceration and a tough response. For liberals, the risk is seeing every defendant as a victim of poverty or society's failures.

The reality, as Sotomayor knows well, is far more complicated. She has seen the human condition up close and personal. She knows the pain of victims and has looked into the eyes of defendants who have committed unspeakable acts with no remorse and are unredeemable. She has also seen defendants who need treatment and jobs, not prison.  Many of these individuals may have committed petty crimes, such as shoplifting or drug possession, to feed an addiction.

This interaction with the criminal justice system also showed Sotomayor on a daily basis just how powerful the state is and the tragedy that is every single criminal case.  In no other area is government more intrusive.  This is the power to lock someone in a cell, or even to take away life.

Sotomayor's experience shows her that this government power is sometimes necessary -- and sometimes isn't.  She also knows that, in every criminal case, people suffer, and not just victims and defendants.  Family members, children and entire communities pay the price when we send away too many people for too long or fail to pay attention and don't provide neighborhoods enough protection.

One never knows how personal experience will translate to life on the bench.  But Sotomayor's experience in a big-city prosecution office would likely to make a difference on a bench that deals with crime every day but has very little real-world exposure to it.

Some prior posts on Judge Sotomayor and her criminal justice record:

UPDATE:  Scott at Simple Justice has some notable reactions to this commentary here.

July 16, 2009 in Who Sentences? | Permalink | Comments (8) | TrackBack

"Sins and Admission: Getting Into the Top Prisons"

The title of this posts is the headline of this intriguing little article from today's Wall Street Journal.  Here is how it starts:

The federal judge overseeing the trial of Bernard Madoff said he would recommend the man who pulled off the biggest Ponzi scheme in U.S. history serve out his sentence in the Northeast. Instead, Mr. Madoff landed in a prison nearly 500 miles away from his New York home, in North Carolina.

How Mr. Madoff ended up in a medium-security facility at Butner Federal Correctional Center could remain a mystery. The Bureau of Prisons won't discuss the placement of specific inmates, and even veteran attorneys are often left to scratch their heads at why their clients wind up in particular facilities.

But the bureau has created guidelines. Criminal defense attorneys and prison consultants who have made careers of trying to perfect the art of swaying placement also shed some light on what factors federal officials may have used to send Mr. Madoff to Butner.

While the Bureau of Prisons generally tries to follow judges' recommendations, "once you're sentenced, you're entirely in the government's hands and they can do whatever they want with you," said Lindy Urso, a defense attorney who has represented federal defendants including reputed mobster Salvatore "Fat Sal" Scala, who was housed at the medical facility in Butner until he died of liver cancer in December. The same evaluation process applies to federal inmates whether they are federal drug offenders, money launderers, white collar criminals or perpetrators of heinous violent crimes.

The bureau uses a scorecard of sorts, ranking inmates by a number of factors including the length of punishment. Sentences longer than 10 years automatically disqualify inmates from a fence-less federal prison camp. If inmates have serious health problems, they are usually placed in a federal medical facility. The bureau also considers bed availability and safety factors for the public at large as well as the inmate.

In lobbying for specific facilities, prison consultants and legal experts focus on a convict's pre-sentencing report, a document that lists medical, financial and other information about the incoming inmate. Defense attorneys scour the report in search of anything that could land a convict in an undesirable facility. They try to convince a judge to delete those items so the Bureau of Prisons won't see them.

July 16, 2009 in Prisons and prisoners | Permalink | Comments (1) | TrackBack

A couple new federal sentences making Madoff's sentence seem short

There was a lot of talk after Bernie Madoff was given a sentence of 150 years in prison about whether this huge number was silly and pernicious because there was no way Madoff could live long enough to serve even a significant portion of this term.  Perhaps the same concerns should be raised with two new sentences recently imposed in federal court as detailed in these stories:

July 16, 2009 in Scope of Imprisonment | Permalink | Comments (9) | TrackBack

Is it already time to start assembling another SCOTUS short list?

This new New York Times article, perhaps reflecting the boring realities of the on-going confirmation hearings for Judge Sotomayor, is already looking ahead to the next SCOTUS nomination battle: "As the two parties skirmish over the Supreme Court nomination of Judge Sonia Sotomayor, some of their rhetorical fire is aimed not at her but at the next justice President Obama may get to pick." Here is the basic set up:

By forcing Judge Sotomayor to retreat from Mr. Obama’s desire for justices with “empathy,” Republicans have effectively set a new standard that future nominees will be pressed to meet.  The Republicans hope their aggressive questioning of Judge Sotomayor on race discrimination, gun control and the death penalty will make it harder for Mr. Obama to choose a more outspoken liberal in the future.

Liberal activists, by contrast, hope the hearings demonstrate that a Democratic president has nothing to fear from Republicans who have not rattled Judge Sotomayor.  If she is confirmed by a commanding vote that includes a number of Republicans, the activists argue, they will have given Mr. Obama more political running room next time to name a more full-throated champion of liberal values.

Because we do not yet know who or when another Justice will step down, I think it is silly to spend too much time anticipating the personhood and politics surrounding the next SCOTUS nominee and confirmation battle.  Still, with the Sotomayor hearings becoming such a snooze-fest, I welcome comments about what the next round might look like (and whether sentencing law and policy will ever get the attention it deserves).

Some older pre-Sotomayor posts on picking Justices:

July 16, 2009 in Who Sentences? | Permalink | Comments (21) | TrackBack

Long sentence (including big upward variance) for failure to register

This local story from New York, which is headlined "Sex offender gets 5½ years for failing to register," reports on the longest federal sentence I have seen for the relatively new crime of failing to register.  As the story details, the sentence given in this case appears to be a huge upward variance from the applicable guidelines (which seems based on some unconvicted conduct):

A Fort Covington man will serve 51/2 years in federal prison for failing to register as a sex offender in New York. Patrick P. Romeo, 68, of 81 Fort Covington St., was sentenced Tuesday in U.S. District Court in Syracuse before Judge Glenn T. Suddaby for violating the federal Sex Offender Registration and Notification Act.

Romeo admitted in February in federal court that he failed to register as a sex offender in New York. He admitted not registering as a sex offender after moving from California to Fort Covington in May 2008, federal court records show.  He was convicted in 2001 of molesting a 15-year-old girl in California in early 1996.

Assistant Federal Public Defender Melissa A. Tuohey, representing Romeo, said Tuesday she argued her client should receive from eight to 14 months in prison. She cited the dismissal of sex abuse charges against him in St. Lawrence County and the fact that Franklin County never indicted him on multiple sexual abuse charges.

The presentence report, done by the federal Probation Department, recommended that Romeo serve 27 to 33 months in prison.... Judge Suddaby sentenced him to 66 months in prison.

Romeo was accused of molesting a 7-year-old boy in August 2008 at Massena Town Beach in the town of Louisville.  The case was dismissed last month in St. Lawrence County Court because of a lack of evidence.  He also was charged in Franklin County on two counts of first-degree sexual abuse, one count of second-degree sexual abuse and three counts each of child endangerment and forcible touching.  He was charged in September with molesting three young boys, ages 7, 10 and 12, at a Fort Covington home.

Though the long sentence in this case was nominally imposed for failing to fill out required forms, this press report suggests that the failure to register offense was just a formal means to punish the defendant for other alleged crimes.

July 16, 2009 in Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

July 15, 2009

Former NFL back Travis Henry gets 3 years in federal prison for drug dealing

From the sport desk comes this afternoon sentencing story from the federal courts in Montana:

A federal judge Wednesday sentenced former NFL player Travis Henry to three years in prison for financing a drug ring that moved cocaine between Colorado and Montana. Henry, 30, of Frostproof, Fla., was arrested by federal drug agents last October — just a few months after the running back’s release from the Denver Broncos.

He pleaded guilty in April to a single count of conspiracy to traffic cocaine. In handing down Wednesday’s sentence, U.S. District Judge Richard Cebull in Billings also gave Henry five years of probation and recommended he enter a 500-hour drug treatment program.

Completion of the treatment program could knock off up to a year from Henry’s sentence. His attorney, Harvey Steinberg, said that with additional time off for good behavior Henry could be out of prison within 16 months.

Henry has said that at the time of his arrest, he was struggling to keep up with child support payments after fathering at least nine children with nine women.  But Cebull said it was Henry’s addiction to marijuana that destroyed the his career and ultimately landed him in federal court.

“This is a unique case in that you’re a unique individual. You’re a heck of a football player,” Cebull said. “You are not unique in this sense: your drug habit.” Cebull and the defense described Henry as a minor player in the Denver cocaine ring and said he had been ensnared in the conspiracy by a friend....

Defense attorney Steinberg had asked for leniency and said Henry turned to cocaine trafficking out of desperation.  He said Henry went into a “downward spiral” after losing $40,000 in drug proceeds that were stolen from a house in Billings.

Assistant U.S. Attorney Joseph Thaggard argued for a sentence of at least 33 months. “Mr. Henry did have it all, in a sense, and he lost it. That’s unfortunate,” Thaggard said.  “The bottom line is this was a significant conspiracy to move a substantial quantity of drugs.”

July 15, 2009 in Celebrity sentencings | Permalink | Comments (1) | TrackBack

Has anything interesting happened during the Sotomayor hearings?

Though I have read snippets of some Q&A with Judge Sotomayor that mentioned gun rights and the death penalty, I am finding the entire spectacle of this week's confirmation hearings both boring and off-putting.  Am I missing something, or was I just foolish for hoping for the event might be more satisfying?

July 15, 2009 | Permalink | Comments (10) | TrackBack

"Marijuana Nation: The New War Over Weed"

The title of this post is the name given to this new CBSNews.com "special report on the evolving debate over marijuana legalization in the United States." Here are the titles and links to some of the new pieces in the series (including one with a Half-Blood Prince tie-in just in time for the movie's openning):

Of course, readers are welcomed and encouraged to attempt clever Harry Potter jokes or references in light of this last item.  For the record, I always had a suspicion that the Potter version of Mandrake was a variation on the wicked weed: that plant helped "loosen up" those who had been petrified in Harry Potter and the Chamber of Secrets). 

July 15, 2009 in Drug Offense Sentencing | Permalink | Comments (4) | TrackBack

Timely topics as time for NASC Annual Conference approaches

I am pleased to be able to again highlight this year's National Association of Sentencing Commissions annual conference, which is held August 2-4, 2009 in Baltimore, Maryland.   As I have noted before, though this year's conference is titled "15 Years of NASC: Looking Back, Moving Forward," the program is so very timely and forward-looking.

Everyone can check out the full agenda and the outstanding group of speakers for this year's NASC event here at the conference website.  Especially as crime and punishment issues contiue to be AWOL during the Sotomayor confirmation hearings, it is refreshing to see an agenda full of front-line, top-notch people talking about these urgent and cutting-edge criminal justice issues.

July 15, 2009 | Permalink | Comments (0) | TrackBack

"Should Parents Who Offend Receive Sentencing Discounts?"

The title of this post is the question posed at the start of this guest post at the NY Times' Freakonomic blog.  Here is the introduction to the guest post (links and all), and the start of its substance:

We have recently featured two guest posts (here and here) by the authors of a new book called Privilege or Punish: Criminal Justice and the Challenge of Family Ties. The authors are Ethan Leib, who is is a scholar-in-residence at Columbia Law School, and an associate professor of law at the University of California-Hastings College of the Law; Dan Markel, the D’Alemberte Professor of Law at the Florida State University in Tallahassee; and Jennifer Collins, a professor of law at Wake Forest University in Winston-Salem. Leib and Markel usually blog at Prawfs.com. Markel has offered to send interested parties a free PDF of their new book upon request. This is their penultimate post.

Should Parents Who Offend Receive Sentencing Discounts?
A Guest Post
By Jennifer Collins, Ethan J. Leib, and Dan Markel

Many states expressly tell judges to calibrate a sentence based, in part, on one’s family ties and responsibilities in sentencing offenders.  Thus, offenders who are parents to minors or caregivers to spouses or elderly parents may, depending on the jurisdiction, be in a position to receive a sharp discount from the punishment they might otherwise receive.  Not only does this pattern of sentencing discounts facilitate ad hoc disparities between offenders who are otherwise similarly situated across cases, but it also hastens to create inequalities between persons involved in the very same offense.  Even in the generally more restrictive federal context, courts have found ways to extend discounts to offenders deemed to have extraordinary “family ties and responsibilities.”

Our view is that sentencing discounts for offenders with family ties require scrutiny and, in some cases, re-tailoring, and in other cases, rejection.

July 15, 2009 in Offender Characteristics | Permalink | Comments (2) | TrackBack

Creative sentencing term for blogger who leaked GNR creativity

This Wired story, headlined "Guns N’ Roses Uploader Gets House Arrest, Will Make Anti-Piracy Ad," notes the creative sentencing term imposed in a case about who gets access to creativity:

A Los Angeles man who pleaded guilty to a misdemeanor charge of uploading pre-release Guns N’ Roses tracks was handed one year probation and two months’ home confinement Tuesday after agreeing to cooperate with the Recording Industry Association of America to produce an anti-piracy message.

Kevin Cogill was arrested last summer at gunpoint and charged with uploading nine tracks of the Chinese Democracy album to his music site — antiquiet.com. The album, which cost millions and took 17 years to complete, was released in November and reached No. 3 in the charts.

Cogill faced a maximum of a year in prison. The authorities, however, originally were demanding six months, claiming the amount of infringement equaled $371,000.  The higher the number, the longer the potential prison term.

According to court documents, after Cogill agreed to help produce an anti-piracy public service address with the RIAA, the government withdrew the $371,000 figure and agreed not to fine him. Los Angeles federal authorities in March said the figure was a “reasonable estimate” that gave the defendant the “benefit of the doubt.”  The calculations, the government said, were based on each downloaded Guns N’ Roses track being worth 99 cents on iTunes.

As part of the 28-year-old Cogill’s guilty plea in December, he informed the authorities that he received the music online and unsolicited — a confession prosecutors said might pave the way for more “targets” to be prosecuted.  Cogill uploaded nine songs from the 14-track album on June 18, 2008. Court records show he confessed to the FBI. The case was cracked by an investigator with the RIAA....

Prosecutor Kevin Missakian said in a telephone interview that the public address will either be a radio or television message of “Kevin talking about the importance of protecting copyright holders’ rights in their songs and movies.” Missakian added that the government was “satisfied” with the sentence, but “the government had asked for some jail time in hopes of sending a stronger message.”

July 15, 2009 in Criminal Sentences Alternatives | Permalink | Comments (8) | TrackBack

The "appearance of partiality" or just a true Reaganite concerned about federal overreaching and costs to taxpayers?

I just got a chance to read closely this mandamus ruling issued late last week by the Seventh Circuit in which a panel granted the federal prosecutor's motion to have a district judge disqualified because, according to the Seventh Circuit, the "Government has established that a reasonable, well-informed observer might question the impartiality of the district judge."  There are many interesting aspects of the Seventh Circuit's ruling, but I was struck most by the fact that what seemed to make the district judge appear partial was his commitment to limiting the power and costs of the federal government -- arguably in the tradition of the president who appointed the judge, Ronald Reagan.

Though the procedural history is complicated, the case got started when local officials found two guns in a bedroom closet of the defendant's estranged wife.  After state felon-in-possession charges were dismissed, federal prosecutors went after the defendant and threatened a 15-year mandatory minimum sentencing term.  After the case got shifted twice to different judges, the matter landed in the lap of Reagan appointee J.P. Stadtmueller.  Judge Stadtmueller was clearly troubled by the case's history, and the Seventh Circuit panel explains how these troubles found expression:

The [judge] called a meeting in chambers on October 9, 2008, with then-United States Attorney Steven M. Biskupic and Federal Defender Daniel W. Stiller ... and [after noting the parties previously came close to a plea deal, the judge] recommended that they consult with the assigned attorneys to explore the possibility of resolving the case without additional litigation. The Government submits that the Judge suggested in the alternative that the case be sent back to state court.  Finally, the Government suggests that, although the Judge recognized that he should not be involved in plea negotiations, he opined that this was an “extremely rare” case that needed to be addressed “at the top”; that he was disturbed that there were 100 docket entries in a one‐count gun case; that if the case were to go forward there may be another appeal; that the case was “an embarrassment to the justice system;” and that he would recuse himself if requested.

Explaining his behavior in a subsequent ruling, Judge Stadtmueller gave this account of his actions and concerns:

As part of its review, the court took note of the troubling procedural history of this case and the ever-mounting commitment of limited prosecution, defense, and judicial resources that, when taken together, have become prohibitively expensive and certainly less cost effective to taxpayer interests.  Thus, the confluence of these factors together with the interests of justice more than suggest that the court and counsel for the parties make a good faith effort toward resolution of the case without the necessity of further litigation.

As I reflect on the facts of the case, I see Judge Stadtmueller principally trying to give judicial expression to the values espoused by the President who appointed him.  Perhaps he did so in an improper way, but I wish the Seventh Circuit's ruling at least gave the judge a bit more credit for being motivated by legitimate interests in the course of concluding that he appears partial in this case. 

July 15, 2009 in Who Sentences? | Permalink | Comments (19) | TrackBack

"Sex Offender Begs For More Jail Time"

The title of this post is the headline of this new piece from ABC News that discusses sex offender residency restrictions and other challenges that sex offenders now face as they seek a return to society.  Here is how the article starts:

Florida sex offender Raphael Marquez was just released from an eight-year prison term, but now he's begging the judge to send him back.

Marquez is one of many sex offenders who have run afoul of a patchwork of laws designed to protect the public from sexual predators.  These laws require offenders to register with the communities in which they live and stay away from schools and playgrounds, leaving some who have served their time and are trying to comply with the law homeless.

Marquez was released June 20, but the only legal and affordable option he could find was a rat-infested overpass in Broward County next to a park filled with 100 other sex offenders.  "This is a very nasty crime, but I deserve a second chance," said the 38-year-old former cabinet maker who was charged with sexual battery of a 12-year-old relative.  "I am positive I won't do this again, but I need all the support and help I can get," Marquez told ABCNews.com. "I am willing to risk my life on it."

Marquez is just one of hundreds of sex offenders who are unable to find work or housing in Broward County.  One local blogger describes his plight as being "under house arrest without a home."  And the problem isn't just there.  In Miami, a legal battle has erupted over a growing colony of sex offenders who have been forced under the Julia Tuttle Causeway.  The vagrants live in shacks, creating a national dialogue over the unintended consequences of residency laws.

The headline of the article comes from the fact that Marquez realizes it will be easier (and cheaper) for him to be law-abiding in jail than on the outside:

"I'd rather be here than violate my probation and run," said Marquez, stressed and losing weight in the Broward County Jail.

July 15, 2009 in Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

Robust legislative debate over NC Racial Justice Act

As detailed in this local article, which is headined "Death penalty bill provokes a battle: Measure moves in fractious House," legislators in North Carolina are engaged in a robust debate over a bill seeking to prevent racial bias from infecting the operation of the death penalty. Here are some excerpts:

Judges would be allowed to consider whether racial bias played a role in the decision to seek or impose the death penalty, according to a bill on which the N.C. House voted Tuesday evening after a long and emotionally charged debate.  "This is a fairness bill," said Rep. Larry Womble, the Forsyth Democrat who helped champion the bill. "If we're going to kill people, we must be as fair and objective as we can.  This allows one more chance for justice to be blind. ... It's not a get-out-of-jail free card for anybody."

Democrats cited studies showing blacks are far more likely to be sentenced to death in North Carolina than whites.  Further, a defendant is 3.5 times more likely to face the death penalty when the victim is white than when the victim is black.

Republicans strongly oppose the measure, saying its passage will clog the courts with frivolous appeals, cost millions and impose a de facto moratorium on executions. "This bill is not really about race," said Rep. Paul Stam of Wake County, the minority leader. "It's about the death penalty."

The N.C. Racial Justice Act passed its second reading in the House 61-55, with every Republican and four Democrats voting no.   A final House vote could come today, and the bill would then return to the Senate, where it may have a difficult time gaining approval and may require a compromise. That's because the House version left out a section of the Senate bill designed to help remove obstacles that have effectively halted executions for two years.  Senate leaders said that provision must be included for the Racial Justice Act to pass that chamber....

On Tuesday, Rep. Dan Ingle, a Republican from Alamance County and former law enforcement officer, dramatically threw a thick law book into his waste basket to illustrate that approving the bill would be the equivalent of trashing the state's criminal code....

Stam read an e-mail from Locke Bell, a prosecutor in Gaston County, who said that only one black man was on death row from his district, while all the rest were white. If the law were approved, the prosecutor complained, white defendants could make a good case they were being discriminated against. "I would have to seek execution of more black men to balance things out," Locke wrote.

Stam, a lawyer, attempted to make the same point using gender, saying that men are proportionally far more likely to face the death penalty than women and suggesting more women be killed for the sake of fairness.  He also raised concerns about the bill being retroactive, which would allow current death row inmates to appeal convictions that may have occurred decades ago.

July 15, 2009 in Death Penalty Reforms | Permalink | Comments (2) | TrackBack

July 14, 2009

State senator Fumo gets below-guideline sentence of 55-months imprisonment on corruption charges

FumoI got this great graphic here and the breaking news concerning the federal sentencing outcomes from state senator Vince Fumo thanks to live-blogging here from folks in Philly.  After what appears to have been a full-day sentencing hearing, Fumo should now be full of thanks toward both the US District Judge Ronald Buckwalter and his defense attorney after receiving a sentence of less than five years for his crimes of fraud and corruption. 

According to press reports, the original sentencing recommendation from in his presentence report calculated a guideline sentencing range of 21 to 27 years in prison, but this range was cut in half by an initial guideline calculation ruling.   Prosecutors, in turn, argued for the imposition of an above-guideline sentence, but the district judge apparently though 55 months behind bar was "sufficient, but not greater than necessary" under these circumstances.   Though I have not followed the particulars of this case closely, I sense that it now stands as a testament to effective defense advocacy.

This early story from the Philadelphia Inquirerprovides some more the crime and punishment details, including the amusing suggestion from one sentencing witness that life in prison may be less stressful than life on the outside:

Assistant U.S. Attorneys John J. Pease and Robert A. Zauzmer had asked Buckwalter to impose a prison sentence of more than 15 years, while defense lawyers sought a sentence substantially shorter than the 11 to 14 years that could be imposed under the sentencing guidelines calculated by the judge.

They also asked the judge to fashion a sentence that would not be tantamount to death for Fumo, who they said has a shortened life expectancy because he suffers from heart problems, diabetes and other medical issues.  A lengthy prison term, they said, would in all likelihood mean that Fumo would die in prison.

Before today's sentencing, John Menenti, a Bureau of Prison's physician, challenged that assertion and suggested that prison would be a less stressful environment than the outside world of deadlines and cell phones.

You heard it here first: if you really need to book a special, get-away-from-it-all, less-stress vacation, be sure contact the travel agents at federal Bureau of Prison.  I know on good guideline authority that if one packs effectively — e.g., extra crack instead of powder, a gun along with the sunscreen — the government will try to send you to this "less stressful environment" (with all expenses paid) for quite a long time.

July 14, 2009 in White-collar sentencing | Permalink | Comments (12) | TrackBack

Might Judge Sotomayor think the Second Amendment "deserves to be on equal footing with the First Amendment" for ex-cons?

The question in title of this post is drawn from a line from this commentary at FOXNews authored by Ken Blackwell and Ken Klukowski, which carries the headline "Sotomayor, Civil Rights and Guns."  The piece is focused principally on whether the Second Amendment should apply to the states, but it leaves me wondering whether and how the authors and others urging Second Amendment incorporation justify excluding former felons and misdemeanants from the Second Amendment:

Over the next two weeks, one of the critical issues will be your civil rights on guns.  Senators could benefit from context to understand the importance of this civil right to protect families, especially racial minorities....

When slavery ended in America after the Civil War, no civil right was more important for black Americans than the right to keep and bear arms.  We passed an amendment to the Constitution to make that possible....  History makes clear that our post-Civil War leaders considered no civil right more important in 1868, when they ratified the Fourteenth Amendment, than the Second Amendment right to keep and bear arms....

But shortly after the Fourteenth Amendment was passed, the Supreme Court held that the Second Amendment did not apply to the states, and did so twice again just a few years later.  Judge Sotomayor relied on one of these cases when she said that people have no gun rights when it comes to state or city laws.  Her supporters laud this opinion, saying that it proves she upholds precedent.

But not all precedents should be upheld.  The cases that Judge Sotomayor relied on also state that our revered First Amendment doesn't apply to the states, either.  Thankfully, the Supreme Court has long since rejected that idea.  None of Judge Sotomayor's boosters seem willing to discuss the fact that these precedents she relied on denied free speech and religious liberty against cities and states....

Clearly, sometimes precedent must be overruled.  Specifically, precedent should be overruled when doing so fulfills the original intentions of the Founding Fathers to make people free, as those intentions are found in the Constitution's text.   The Second Amendment deserves to be on equal footing with the First Amendment.

As regular readers may know, I have often embraced viewing the Second Amendment as a civil right that should "on equal footing with the First Amendment." It is this perspective that makes me so troubled by certain federal prosecutionsand severe sentences imposed on felons and some misdemeanants merely for seeking to exercise their "civil rights on guns." 

To my knowledge, it would be unconstitutional for Congress to criminalize the exercise of any First Amendment rights by all felons and some misdemeanants.  And yet, despite all the concerns expressed about Judge Sotomayor's regard for the Second Amendment, few have had the courage to even acknowledge how existing federal felon-in-possession laws undermine this "civil right" for tens of millions of Americans.  Though the Second Amendment is starting to get some play in Day 2 of the Sotomayor hearing, it seems that the truly challenging questions raised by a serious committment to Second Amendment rights are still being avoided by everyone.

Some related Second Amendment posts:

July 14, 2009 in Second Amendment issues | Permalink | Comments (3) | TrackBack

Can concerns for dollars and cents finally bring sense to federal mandatory minimum sentencing statutes?

As previously previewed here, the House Judiciary's Subcommittee on Crime, Terrorism, and Homeland Security this morning held a hearing this morning on "Mandatory Minimums and Unintended Consequences."  I cannot yet find any press reports on the hearing, but all of the written testimony from the five witnesses can be found at this House webpage

All the written testimony is worth checking out, but I found these written remarks of Grover G. Norquist, who is President of Americans for Tax Reform, to be the most refreshing.  It highlights the latest way in which the economic of harsh sentencing helps create a new push for needed reforms.  Here are excerpts from his Norquist's written testimony:

To begin with, [the] pedigree [of mandatory minimum sentencing laws] makes them highly suspect. As with so many other federal programs, mandatory minimums were hatched by the Left, later embraced by the Right, and have been maintained by a bipartisan majority....

We should know by now to beware of easy solutions.  As H.L. Mencken said, “There is always an easy solution to every human problem — neat, plausible, and wrong.”  Today, a generation later, it is increasingly clear that adoption of mandatory minimums, while a neat and plausible response to sentencing disparities, was the wrong solution....

The biggest problem from the perspective of the taxpayer, however, is that mandatory minimum sentencing policies have proven prohibitively expensive.  In 2008, American taxpayers spent over $5.4 billion on federal prisons, a 925 percent increase since 1982.

This explosion in costs is driven by the expanded use of prison sentences for drug crimes and longer sentences required by mandatory minimums.  Drug offenders are the largest category of offenders entering federal prisons each year.  One third of all individuals sentenced in federal courts each year are drug offenders.  And these convicts are getting long sentences.  In 2008, more than two-thirds of all drug offenders receive a mandatory minimum sentence, with most receiving a ten-year minimum.

The jump in corrections costs at the state level has been equally dramatic.  State corrections spending has ballooned from $6 billion in 1982 to over $50 billion in 2008.  These skyrocketing costs are hitting states at a time when they are already being forced to cut back due to the bad economy.

The benefits, if any, of mandatory minimum sentences do not justify this burden to taxpayers. Illegal drug use rates are relatively stable, not shrinking.  It appears that mandatory minimums have become a sort of poor man’s Prohibition: a grossly simplistic and ineffectual government response to a problem that has been around longer than our government itself.

Yet all is not lost.  Center-right governors like Rick Perry of Texas are trying new approaches.  A couple of years ago, Texas started sending low-level, first-time felony drug users to mandatory drug treatment rather than prison.  Before Governor Perry, it was Republican Governor — John Engler of Michigan — who signed into law the first major repeal of state mandatory minimum sentences.  Engler’s action saved Michigan taxpayers $40 million in prison costs without jeopardizing public safety.

In closing, I want to note that questioning the wisdom of mandatory minimums has nothing to do with being soft on crime.  I believe in strong and swift punishment when appropriate. I support the death penalty for murderers.  But the government has a responsibility to use taxpayer money wisely.  Viewed through the skeptical eye I train on all other government programs, I have concluded that mandatory minimum sentencing policies are not worth the high cost to America’s taxpayers.

The folks at Families Against Mandatory Minimums have this new press release about the House hearings; it makes much of Norquist's written testimony and is headed "FAMM, Unusual Allies Call for Sentencing Reform."

Some related old and new posts:

July 14, 2009 in Mandatory minimum sentencing statutes | Permalink | Comments (5) | TrackBack

Big break given to prominent former judge/prosecutor for back-end cooperation

A helpful reader alerted me to this local story of a notable white-collar defendant getting a huge back-end sentencing break for cooperation.  Here are the details:

Sam Currin, a former judge, federal prosecutor and state Republican Party chairman, was ordered released from prison after serving a fraction of a nearly six-year sentence for money laundering and obstruction. Senior U.S. District Judge W. Earl Britt made the order Monday.

Federal prosecutors recommended in May that Currin, imprisoned since 2007, have his original 70-month sentence cut in half following his testimony against a co-conspirator, David A. Hagen.

Thomas Walker, one of Currin's defense attorneys, argued in court Monday that the fallen federal prosecutor and former state judge should be granted the kind of leniency he often opposed for criminals.  Walker asked the judge to reduce the sentence to 29 months to allow Currin, 60, to be home in Raleigh in time to see his son graduate from law school next year. "He has suffered greatly," Walker said. "We're begging for the court's mercy."

Britt, who handed down Currin's original sentence and presided over the Hagen trial, went even further, commuting Currin's sentence to time served.... Under the original terms of his sentence, Currin was not due for release until April 2013.  He has been held at the Federal Medical Center at Fort Devens, Mass., though the reason he has been in the hospital has not been made public.

A conservative Republican and close aide of the late U.S. Sen. Jesse Helms, Currin served from 1981 to 1987 as the U.S. attorney for the Eastern District of North Carolina, a jurisdiction that sweeps from Raleigh to the coast.  He was a Superior Court judge from 1987 to 1990 and elected as the state's GOP chairman in 1996, serving until 1999.  At his sentencing in 2007, Currin admitted to laundering $1.3million on behalf of Hagen, an e-mail spammer who authorities said ran one of the most prolific spamming operations in the world, peddling everything from mortgages to stock picks...

In his decision Monday, Britt cited Currin's extensive cooperation with federal prosecutors.  But he also echoed Walker's observation that Currin has visibly declined while in prison.  Currin's defense attorney said both his physical health and mental condition deteriorated while staying in the Mecklenburg County jail during Hagen's two-week trial.

Picking up on the legal themes of the week, this DailyKos diary entry provides this description of the story: "Empathy explosion releases money-laundering Republican judge from prison."

July 14, 2009 in Offender Characteristics | Permalink | Comments (2) | TrackBack

Intriguing Sixth Circuit ruling on victim access to PSR

A little opinion from the Sixth Circuit yesterday In re Siler, No. 08-5215 (6th Cir. July 13, 2009) (available here), should be reviewed by any and everyone interested in victims' right to access presentencing reports and/or in defendants' rights to keep PSR's private.  Here is how the interesting opinion gets started:

This appeal arises in the context of the defendants’ criminal trial, although the issue now before us is unrelated to the merits of the Government’s case against the defendants.  Petitioners Lester and Jenny Siler sought access to the defendants’ Presentence Reports (PSRs).  The defendants were Campbell County law enforcement officers who violated Lester Siler’s constitutional rights while arresting him.  The defendants pled guilty to federal charges for their actions, and the Silers subsequently sued them for civil damages.  Following discovery in the civil case, the Silers moved the district court in each of the defendants’ criminal cases to release the defendants’ PSRs to them.  The district court denied the motions, correctly we conclude. There is no apparent authority for the release of such documents in this context.  But even if the district court did have authority to entertain the Silers’ motions, it did not abuse its discretion in denying the Silers’ motions because PSRs are confidential, nonpublic documents, and the Silers did not show that they had a special need to have access to them.

July 14, 2009 in Victims' Rights At Sentencing | Permalink | Comments (7) | TrackBack

SCOTUS grants stay in Virginia capital case raising intriguing double jeopardy claim

I noted here last week the notable case of Powell v. Kelly, a capital case from Virigina raising a notable double jeopary claim.  This Washington Examiner article reports on the latest development in the case:

The U.S. Supreme Court halted the execution of a Prince William County man who was set to die tonight so the justices could consider whether to hear arguments that Paul Warner Powell was unconstitutionally tried twice for killing a 16-year-old Manassas girl.

The order came as Virginia corrections officers were practicing electric chair procedures for the 31-year-old Powell, who in 1999 drove a knife into the heart of teenager Stacie Lynn Reed before raping and stabbing her 14-year-old sister, Kristie.

Related prior post:

July 14, 2009 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

More notable sentencing reform talk from Attorney General Holder

Yesterday, Attorney General Eric Holder gave this talk at the NAACP’s Centennial Convention. Here are the sections that speak to sentencing issues:

[W]e must keep working to build a more effective, more efficient, more equitable system of criminal justice.  A system of justice that focuses not just on punishing criminals, but also on preventing crime.  A system of justice that focuses not just on locking people away, but also on integrating former offenders back into their communities so they can build productive, law-abiding lives. And, a system of justice that applies the same penalties for offenses involving cocaine – regardless of its form.

I have seen first-hand the effect that disparities in drug sentences have had on our communities.  In my career as a prosecutor and judge, I saw too often the cost borne by the community when promising, capable young people sacrificed years of their futures for non-violent offenses.  Let me be clear: the Department of Justice will never back down from its duty to protect our citizens and our neighborhoods from drugs, or from the violence that all-too-often accompanies the drug trade.  But we must discharge this duty in a way that protects our communities as well as the public’s confidence in the justice system.

It is not justice to hand down disparate prison sentences for materially similar crimes.  It is not justice to continue our adherence to a sentencing scheme that disproportionately affects some Americans, and some communities, more severely than others.  Our goal is simple: to ensure that our sentencing system is tough and predictable, but also fair.

Some related old and new posts:

July 14, 2009 in Who Sentences? | Permalink | Comments (8) | TrackBack

July 13, 2009

Dreier gets 20-year federal prison sentence

As detailed in this Bloomberg article, "Marc Dreier, the New York law firm- founder, was sentenced to 20 years in prison for defrauding hedge funds of more than $400 million and stealing money from his clients."  Here are more details from the sentencing:

U.S. District Judge Jed Rakoff in Manhattan today sentenced Dreier, 59, to a term far shorter than the 145 years sought by prosecutors. Dreier’s lawyers asked for a sentence of as few as 10 years. Dreier was also ordered to pay $387.7 million in restitution....

“Mr. Dreier’s crimes, despicable though they may be, pale in comparison to Mr. Madoff’s,” Rakoff said, referring to investment manager Bernard Madoff who pleaded guilty in March to a $65 billion Ponzi scheme. “But one must still be appalled” by his crimes, he said. “This is a huge fraud by any standards,” the judge said....

Rakoff said that Dreier, who he said had a life expectancy of 80 years, was not “beyond redemption.” The judge said he was surprised that Dreier’s letter showed an “understanding” of his crimes. Letters that victims wrote to the judge depicted Dreier as “arrogant, condescending and cruel,” Rakoff said.

UPDATE: The New York Law Journal provides additional coverage of the Dreier sentencing in this piece, headlined "Dreier Gets 20 Years for 'Betrayal of Trust'."

July 13, 2009 in White-collar sentencing | Permalink | Comments (8) | TrackBack

"The Unexceptionalism of Evolving Standards"

The title of this post is the title of this new article from Professor Corinna Lain.  It looks like an interesting and important and timely piece with the SCOTUS confirmation hearing now on-going and the big SCOTUS juve LWOP cases on the horizon.  Here is the abstract:

Conventional wisdom is that outside the Eighth Amendment context, the Supreme Court does not engage in the sort of explicitly majoritarian state nose-counting for which the 'evolving standards of decency' doctrine is famous. Yet this impression is simply inaccurate. Across a stunning variety of civil liberties contexts, the Court routinely, and explicitly, bases constitutional protection on whether a majority of states agree with it. This Article examines the Supreme Court’s reliance on the majority position of the states to identify constitutional norms, then turns to the qualifications, explanations, and implications of state polling as a larger doctrinal phenomenon. While the past few years have seen an explosion of constitutional law scholarship demonstrating the Supreme Court’s majoritarian tendencies, the most powerful evidence of the Court’s inherently majoritarian nature has been right under our noses all along: its widespread use of explicitly majoritarian doctrine.

July 13, 2009 in Recommended reading | Permalink | Comments (1) | TrackBack

"States Seek Less Costly Substitutes For Prison"

The title of this post is the headline of this article from today's Washington Post.  Here is how the piece gets started:

Cash-strapped states are increasingly turning to alternative sentencing methods and to streamlined probation and parole as a way to keep low-level offenders out of prison and in their communities.

The alternative sentencing methods have been in limited use for years, often with little funding and less publicity. But recently they have gained in popularity across the country and have attracted interest from lawmakers. The measures include drug courts, which allow low-level drug offenders to avoid prison time through treatment and intense, personal, weekly intervention by a judge, and at least 500 courts for people arrested for driving while intoxicated. Drivers avoid jail by attending regular alcohol-treatment classes and by submitting to random tests.

States have also begun to shorten probation and to reduce the number of people sent to prison for technical violations, such as missing appointments. Some states are also more readily granting parole to prisoners as they become eligible, reversing a trend that kept even parole-eligible inmates locked up longer.

These trends are showing up almost everywhere as a direct response to governors and state legislatures looking with alarm at prison costs eating up increasing shares of their budgets. According to Adam Gelb, director of the Public Safety Performance Project for the Pew Center on the States, more than half the states and the District are trying to reduce the growth in their prison populations through alternative sentencing and through new probation and parole procedures.  "The economy is bringing a lot of states to the table," Gelb said, "and the research has pointed to a path for them to more public safety at less cost."

July 13, 2009 in Scope of Imprisonment | Permalink | Comments (0) | TrackBack

Eighth Circuit en banc ruling finally affirms big variance after Gall GVR

The Eighth Circuit today handed down an important en banc ruling today in US v. Feemster, No. 06-2059 (8th Cir. July 13, 2009) (avaialable here).  Here is the unofficial summary of the ruling from the circuit's website:

Judge Smith, Author for the Court En Banc: For the court's prior opinions in the matter, see United States v. Feemster, 435 F.3d 881 (8th Cir. 2006) and United States v. Feemster, 483 F.3d 583 (8th Cir. 2007).  On remand from the Supreme Court for further consideration in light of Gall v. United States, 128 S.Ct. 586 (2007).  The district court provided substantial insight into   the reasons for its sentencing decision, and the government's argument  that the court failed to adequately explain its chosen sentence is rejected; district court's justification for imposing a 120-month sentence rests on precisely the kind of defendant-specific determination that are within the special competence of the sentencing courts, and the court could not say that the district court abused its discretion or imposed an unreasonable sentence.  Judge Riley, concurring.  Judge Colloton, concurring.  Judge Beam, dissenting.

Though Judge Riley's concurrence is really tantamount to a dissent, it is notable that only two judges on the Eighth Circuit ultimately resisted signing off on what was a very big variance in Feemster.  Also, as a helpful reader wrote in an e-mail, "Judge Colloton’s concurrence on unwarranted sentencing disparity and the inability of the Circuits to correct it [is] particularly interesting."

July 13, 2009 in Booker in the Circuits | Permalink | Comments (11) | TrackBack

Should we expect (or hope) any Sotomayor surprises this week?

As detailed in this latest Washington Post piece, everyone inside the Beltawy is "geared up this morning for a historic Supreme Court confirmation battle as Sonia Sotomayor prepared to take her seat in front of the 19 members of the Senate Judiciary Committee."  I plan to watch some of the festivities, though I fear they will prove to be a bit boring.  Indeed, I am worried that I will be watching like a sometimes NASCAR fan, more interested in seeing some fiery wrecks rather than a lot of smooth driving. 

I am not rooting for, or in any way expecting, Judge Sotomayor to hit a wall as she navigates through these confirmation hearings (indeed, I signed a letter supporting her confimation).  Rather, I am principally rooting for the "judicial activism" attack to become engulfed in flames as Judge Sotomayor gets pressed by Republicans for why she was not more eager to declare unconstitutional a New York restriction the popular gang weapon known as a nunchaku (the Maloney case) or public hiring plans (the Ricci case).  I am also kind of hoping some Senator gets really mixed up when trying to ask a question about Booker or the Eighth Amendment or some other sentencing topic.

Some of my major pre-hearing coverage of Judge Sotomayor and her criminal justice record:

UPDATE:  The first "crash" did not take long to happen, as reported on this live-blog of the hearings from the New York Times:

We’ve Now Been Interrupted | 10:45 a.m. A man who appears to be anti-abortion shouted loudly while Senator Dianne Feinstein was speaking: “Senator, What about the unborn?” He was escorted out the room, and Chairman Leahy is now warning everyone not to interrupt the proceedings. Senator Sessions concurs.

July 13, 2009 in Who Sentences? | Permalink | Comments (24) | TrackBack

Whither the Webb reform bill ... does it weather or wither?

I just discovered this long piece from last week's Washington Post discussing Senator Jim Webb and his on-going efforts to engineer some effective criminal justice reforms.  The piece is headlined "Structuring Sentences: Jim Webb Puts His Writerly Skills to Work in a Modest Proposal: Reform The Nation's Prisons — And Drug Laws," as these passages of the article prompts the question of this post's title:

When he decided to propose a massive reexamination of U.S. prisons and criminal laws this past spring, he gave the usual floor speech. Whereas other senators may get confined to that usually empty chamber and its daytime C-SPAN audience, Webb went on from there to state his case by writing a Parade magazine cover story titled "Why We Must Fix Our Prisons," talking directly to its 30 million-plus Sunday readers....

On its face, Webb's proposal is bolder in rhetoric than in practice, to put it mildly.  He wants to — brace yourselves — form a bipartisan commission!  (The proposal is included in a bill that has attracted more than two dozen co-sponsors, but has yet to be voted on.)  The commission is supposed to, among other things, come up with recommendations for reducing the overall incarceration rate, decreasing prison violence and improving treatment of mental illness inside and outside prisons....

Little public opposition has emerged, though that might have more to do with the bill's uncertain status than anything else.  In the meantime, Webb says he's been contacted about his proposal by the president and Supreme Court Justice Anthony Kennedy, both of whom gave encouraging signals. And he is quietly amassing an eclectic band of supporters, ranging from the influential — Senate Majority Leader Harry Reid of Nevada — to the surprising — conservative Republican Sen. Lindsey Graham of South Carolina.

Because Webb's bill is styled in a way that should make it relatively non-controversial, I am not surprised that little public opposition to the bill has emerged.  I am a bit surprised, however, that four months after its introduction, it seems to lack any of the momentum needed to become a reality anytime soon.

For various reasons, I think the current sentencing reform talk coming from the Justice Department (basics here and here) has much more short-term potential to impact sentencing law and policy than does Webb's bill.  Still, the status and future of Webb's bill may serve as a useful window on current crime and punishment politics.

Some related old and new posts:

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

A week worth watching from a white-collar sentencing perspective

Late monday afternoon is the scheduled federal sentencing of lawyer Marc Dreier in New York City, who might be viewed as a kind of mini-Madoff.  As detailed in prior posts here and here, there are lots of interesting elements to the Dreier case that make it the first post-Madoff must-watch event for white-collar sentencing fans.

But the Dreier case just gets the white-collar sentencing action started this week.  As detailed in this new article from The Legal Intelligencer, which is headlined "Judge's Calculation May Reduce Fumo's Sentence," there is also a notable political corruption case due to be sentencing this week in Pennsylvania.  Here is how this article sets up the sentencing excitement in this other notable white-collar sentencing case:

A two-page order handed down on Friday was the first piece of good news in a long time for former state Sen. Vincent J. Fumo -- whose sentencing on fraud and obstruction of justice charges is set for Tuesday -- as U.S. District Judge Ronald L. Buckwalter effectively slashed Fumo's sentencing recommendation in half. But by the end of the day, prosecutors had filed a 58-page brief that said Fumo, 66, should be hit with a longer prison term than the federal guidelines recommend because his crimes rocked the public's confidence in the integrity of public officials and because of his perjury at trial and his "exceptionally egregious" cover-up scheme.

The original recommendation from a probation officer said Fumo's sentence should be in the range of 21 to 27 years in prison. But the new calculation announced by Buckwalter, once it is finalized, could reduce the recommendation to a range of nine to 12 years.

It's still impossible to guess what Fumo's ultimate sentence will be because Buckwalter has yet to decide whether to grant downward departures from the guidelines range for Fumo's "good works," although the judge has ruled out any departure based on Fumo's ailing health. And since the guidelines are now "merely advisory," Buckwalter has the freedom to decide for almost any reason to grant a "variance" and impose a term either above or below the guidelines range.

July 13, 2009 in White-collar sentencing | Permalink | Comments (1) | TrackBack

"America's Jail Crisis"

The title of this post is the headline of this effective new piece in Forbes.  Here are excerpts:

Amid budget crises, falling tax revenue and national unemployment approaching 10%, jails — usually city- or county-run holding facilities for those serving short sentences or awaiting trial — saw their populations grow nearly twice as fast as state and federal prison populations during the first half of the decade, according to a 2008 report by the Justice Policy Institute. The report says that local governments spent $97 billion on criminal justice in 2004, up 347% since 1982, while detention expenses climbed 519% to $19 billion.

Between 2006 and 2008, Harris County's jail population grew 21%, adding 1,900 more mouths to feed three times a day. In 2000, there were 621,149 people in America's local hoosegows; by midyear 2008 there were 26% more, or 785,556 inmates housed at an average 95% of rated capacity....

The National Association of Counties is calling on communities to invest more into pretrial services so that people charged with non-violent offenses who don't need to be confined can be quickly vetted for community programs and the mentally ill can be put under health care services or, if needed, placed in a secure health facility.  In Harris County, for instance, some people are detained for speeding tickets, yet potentially could be among those who cost about $485 a day for a bed in a local hospital.

"Many people are in jail because they are too poor to post bail," says Donald Murray, senior legislative director for justice and public safety for the association.  "If you have a first-class pretrial program, a county is often in a better position because they can carefully analyze the individual, can figure out better what needs to be done."

The Justice Policy Institute says eight out of 10 people in jail earned less than $2,000 a month before they were locked up.  Nearly two-thirds of the people behind bars are waiting for trial, while the length of pretrial detention has increased.  Meanwhile, between 1986 and 2005, violent crime arrests climbed 25%, while drug arrests jumped 150%, 82% of them in 2005 for possession (about half for marijuana).  And an estimated six out of every 10 jail inmates have a mental disorder, compared to 1-in-10 in the general population....

As states operate in a drastic budget climate, jails and prisons stand to face cutbacks, despite harsher sentencing guidelines passed in the 1980s and '90s that have glutted cellblocks.  In 2008, the total jail and prison population reached 2.3 million, topping for the first time the ratio of one in every 100 adults.  Meanwhile, in the past 25 years, the number of people on probation and parole has increased from 1.6 million to 5 million.  Many are caught in a revolving door: 40% of probationers don't complete their obligation successfully and more than half the number of parolees land back in jail after three years of being released.  Yet the cost differences in 2008 are clear: $78.95 a day for a prisoner compared to $3.42 for supervising a probationer.

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

July 12, 2009

House hearing on "Mandatory Minimums and Unintended Consequences"

Though nearly all eyes this week will be on the Senate Judiciary Committee as the confirmation hearings for Judge Sotomayor get started, sentencing fans should be sure to take note of a hearing scheduled for Tuesday in the House. Specifically, as detailed here, on Tuesday morning the House Judiciary's Subcommittee on Crime, Terrorism, and Homeland Security will hold a hearing on "Mandatory Minimums and Unintended Consequences."

Though no official witness list has yet been posted, this item from FAMM indicates that FAMM president Julie Stewart is scheduled to testify.  I hope and expect that some representative from the Department of Justice will also be testifying, though I am not quite sure what to hope and expect to hear from DOJ on mandatory minimums. 

Though AG Holder recently gave a fairly progressive speech on criminal justice issues (details here), he has previously express at least modest support for some mandatory minimum sentencing laws.  And, though President Obama has expressed concerns about mandatory minimums, his Administration has to date largely avoided expressly condemning or condoning such laws.  Perhaps something consequential might get said by the DOJ rep at this upcoming hearing.

July 12, 2009 in Mandatory minimum sentencing statutes | Permalink | Comments (6) | TrackBack

A few confirmation questions for criminal justice fans from Senator Cornyn

As explained here, in the run up to Judge Sotomayor's confirmation hearing, Texas Senator John Cornyn for the last few weeks has been posting questions about Judge Sotomayor's record and her views on the law and the Constitution  The full list of questions can be found at this link, and here are a few of Senator Cornyn's 20 questions that might be of special interest to criminal justice fans:

Question 9: Are judges supposed to update the law to reflect changing social policy?

Question 10: What did Judge Sotomayor mean when she agreed that the Second Amendment does not protect a fundamental right?

Question 14: Has the Supreme Court made any missteps in the last fifty years that might justify public skepticism about lawyers and the courts?

Question 16: Should the Constitution be interpreted to allow the death penalty, and if so, under what limitations?

Obviously, only Question 16 is a "pure" criminal justice question.  But Question 9 seems especially relevant to modern Eighth Amendment doctrine, which is implicated by the big juve LWOP cases on the Supreme Court's docket.  And, as regular readers know, I think a declaration that the Second Amendment protects a fundamental right could have profound implications for criminal justice administration.  And I could imagine lawyers and judges of all political stripes coming up with criminal-justice-related answers for Question 14 (which is the most intriguing question of this bunch).

July 12, 2009 in Who Sentences? | Permalink | Comments (2) | TrackBack

Noticing some gendered realities of death penalty administration

This local article from Alabama, headlined " Death row-worthy crimes largely committed by men," spotlights a couple of issues about death penalty administration that I always find notable.  Here are snippets:

If a Franklin County judge overrides a jury's recommendation and sentences Christie Michelle Scott to die by lethal injection, she would be the first woman in the county to receive the death penalty.

Franklin Circuit Court Judge Terry Dempsey will impose her sentence Aug. 5. The jury who convicted her of killing her 6-year-old son, Mason, recommended Friday that she be sentenced to life in prison without parole.  Dempsey is not obligated to accept the jury's recommendation and could instead sentence her to death.

A death sentence for Scott, who was convicted of three counts of capital murder Wednesday, would also make her one of a few women in Alabama ever to be sentenced to die for a crime.

Since 1973, only 10 women have received death sentences in Alabama, said Richard Dieter, director of the Washington, D.C.-based Death Penalty Information Center, a nonprofit that tracks capital punishment in the United States. Only one of those women, Lynda L. Block, who was convicted in 1994 for killing an Opelika policeman, has been executed. She was executed May, 10, 2002, and since then no other woman has been executed in Alabama, according the Alabama Department of Corrections.

Only four women have been executed in Alabama since 1927, according to state corrections statistics. During that same period, 192 men have been executed. There are 199 men and four women on Alabama's death row.

Bryan K. Fair, a professor of law at the University of Alabama, said the wide margin between the number of men and women being sentenced to death is not a result of courts being more lenient on women. Instead, it's a result of fewer women committing crimes that meet the criteria for capital punishment, such as a homicide committed during a robbery or rape. "The kinds of offenses that can be punished by death are typically committed by men," Fair said. "In our society in general, violent crimes are committed most often by men."

Dieter said Alabama is not alone in having far fewer women than men on death row.  "Most of the women who are on death row were convicted of killing their husband or someone they knew," Dieter said. "Women rarely kill a stranger, such as during a robbery, because women do not typically commit violent crimes."

Franklin County District Attorney Joey Rushing calls the crime Scott committed the most heinous ever in the county. "There's nothing worse than a mother murdering a child for insurance and because they didn't want him," Rushing said at trial....

Because of the heinous nature of the child's death, Rushing said he will ask Dempsey to consider the death penalty at Scott's Aug. 5 sentencing hearing.  He said five of the 12 jurors supported sending Scott to death row.

This article not only raises issues of gender, but also the role of judicial overrides to correct biases in the administration of the death penalty.  Should Franklin Circuit Court Judge Terry Dempsey feel a special obligation to impose a sentence of death if he believes that the jury recommended a life sentence only or primarily because the defendant here was a woman?

July 12, 2009 in Death Penalty Reforms, Race, Class, and Gender | Permalink | Comments (9) | TrackBack

Constitutional rejection of severe mandatory minimum sentence getting attention for circuit nominee

This effective new article in today's Atlanta Journal-Constitution , which is headlined "Appeals nominee set sentence rule aside," reviews a notable ruling in a federal sex offense case by one of President Obama's latest circuit court nominees. Here are a few details:

Kelly Brenton Farley had it all planned out: fly into Atlanta for business, hook up with a woman he met on the Internet and have sex with her and her 10-year-old daughter.  But Farley never got the chance. When his plane landed in Atlanta, he was ensnared in an undercover FBI sting, arrested and later convicted at trial.

For crossing state lines to engage in sex with a child under 12, Farley faced a 30-year minimum mandatory prison sentence set by Congress.  But U.S. District Judge Beverly Martin — President Barack Obama’s nominee for the federal appeals court in Atlanta — declined to impose it.

In a ruling federal prosecutors call “unprecedented,” Martin found unconstitutional the minimum mandatory term. In an order, she said the punishment was disproportionately severe when compared to penalties for similar and more aggravated crimes.... The ruling has already drawn sharp criticism by top House Republican lawmakers who say Martin ignored Congress’ authority to decide the appropriate punishment for those who try to sexually abuse a child.  Nine members are asking the 11th U.S. Circuit Court of Appeals — where Martin would sit if she is confirmed — to overturn her decision....

Last week, Rep. Lamar Smith (R-Texas), ranking minority member of the House Judiciary Committee, said Martin improperly lopped 10 years off Congress’ mandatory minimum sentence for pedophiles. “If we’re serious about protecting children from sexual predators, we must make sure that our laws are effectively enforced and that judges do not stray from Congress’ intent,” he said....

Last month, when Obama sought to elevate Martin to the appeals court, he called her a first-rate jurist with “unflagging integrity and evenhandedness.”  The 12-member 11th Circuit, hears appeals out of Georgia, Alabama and Florida.  Martin, 53, is a former U.S. attorney in Macon. She was put on the U.S. District Court in Atlanta by President Bill Clinton in 2000.

Former state Attorney General Mike Bowers, a Republican who recommends judicial appointments to Gov. Sonny Perdue, called Martin a straight shooter who “really believes in the rule of law and doing what’s right.” No one should give her a hard time at her confirmation hearing, Bowers said. “She’s a gift.”  One of Georgia’s two GOP senators, Saxby Chambliss, gave Martin a ringing endorsement, saying Obama “could not have chosen a more qualified individual” for the 11th Circuit.

Atlanta criminal defense attorney Don Samuel, an expert on federal sentencing law, noted that Martin did not declare the 30-year minimum mandatory sentence unconstitutional in every case — only as it applied to Farley. “[It] reflects her thoughtful consideration of whether the Constitution permits Congress to set a minimum sentence that bars a judge from considering any facts about the case that might make a sentence unreasonable,” he said.

In her Sept. 2, 2008, order, Martin said she had “tremendous respect and deference” for Congress. But to simply assume a statute is constitutional without substantive review would violate the principle of separation of powers, she said.  At Farley’s sentencing hearing, Martin sent him away for 19 years and seven months in prison. “I have never intended to imply that I don’t consider this a serious offense,” she told him.

During eight years as a federal judge, Martin said, the only statute she had struck down was a local sign ordinance.  She also said that when she set out to decide the constitutional challenge to the mandatory prison sentence, she intended to uphold it. But when reviewing other statutes imposing penalties for similar or more severe conduct, “I just couldn’t form the words to say that it wasn’t … disproportionately harsh,” she said. Martin noted that crossing state lines with the intent to kill someone carries a maximum penalty of 10 years in prison; if the victim is physically harmed, the maximum is 20 years.

Farley, a father of six from McKinney, Texas, once earned $140,000 as a regional vice president for a financial services company. On Oct. 3, 2006, he entered a Yahoo chat room called “Fetish Number 14,” devoted to the topic of incest. In the chat, Farley met “Stephanie,” who said she was a nurse and a single mother with a 10-year-old daughter named Sydney. But Stephanie was actually Joanne Southerland, a Clayton County detective assigned to the FBI task force....

Congress requires the same minimum mandatory 30-year term for someone who actually engages in sex with a child, Martin wrote.  She noted that no harm was suffered in Farley’s case, “because the child was a creation of law enforcement and no real child exists.”... “While Mr. Farley’s crime is deplorable,”  Martin concluded, “it is far less grave than crimes committed by perpetual offenders that remain a demonstrated threat to the public, or crimes that result in loss of or emotional devastation to a person’s life.”

Related posts:

July 12, 2009 in Sex Offender Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack