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?
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:
- Might Judge Sotomayor think the Second Amendment "deserves to be on equal footing with the First Amendment" for ex-cons?
- Seventh Circuit resists extending Second Amendment to the states
- NRA quickly petitions SCOTUS for Second Amendment incorporation
- SCOTUS undercuts constitutional gun rights in Hayes without even mentioning Heller or Second Amendment
- Even the Chief and Justice Scalia are content to damn gun possession with faint praise
- Given Hayes, can jurisdictions criminalize gun possession by any misdemeanant?
- The lack of originalist justification for excluding felons from the Second Amendment
- Assailing the unjustified Second Amendment limits in Heller
- Notable new Alaska appellate decision on denying gun rights to non-violent felons
- "Why Can’t Martha Stewart Have a Gun?"
- What might 2009 have in store for . . . Second Amendment jurisprudence?
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.
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.
"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:
- State senator Fumo gets below-guideline sentence of 55-months imprisonment on corruption charges
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.
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.
Some related federal child porn prosecution and sentencing posts:
Some related federal child porn prosecution and sentencing posts:
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 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:
- Some very early, very brief sentencing reflections on Judge Sotomayor
- A quick thought on Judge Sotomayor's sentencing work in Cavera
- Noting early unpublished sentencing opinions from Judge Sotomayor
- Notable background parallels between Judge Sotomayor and Justice Alito
- "Sotomayor Seen As Moderate On Criminal Justice"
- Will Judge Sotomayor make SCOTUS less friendly to criminal defendants?
- Any predictions on how a Justice Sotomayor would approach capital cases?
- Examining Judge Sotomayor's years as a New York state prosecutor
- Examining Judge Sotomayor's criminal justice record
- Fascinating new TRAC report on Judge Sotomayor's sentencing record
UPDATE: Scott at Simple Justice has some notable reactions to this commentary here.
"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.
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:
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:
- Insider myopia and the diverse benefits of a short bench
- Does SCOTUS need a trial judge?
- An op-ed call for a district judge to become a Justice
- Brave New Justice and sentencing issues
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 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.”
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?
"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).
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.
"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.
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.”
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.