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August 8, 2009

Trying the old "my cat downloaded the kiddie porn" defense

A helpful reader alerted me to this amusing local news story, headlined "Treasure Coast man blames cat for downloaded child pornography," that allows me to do a little cat blogging along with the usual child porn coverage:

Martin County Sheriff's detectives didn't buy it when a 48-year-old Jensen Beach man claimed that his cat was downloading child pornography on his computer.

Keith R. Griffin, of the 3600 block of Northeast Jeannette Drive, was charged Wednesday with 10 counts of possession of child pornography after detectives found more than 1,000 child pornographic images on his computer, according to a news release.

Griffin told detectives he would leave his computer on and his cat would jump on the keyboard. When he returned, there would be strange material downloaded, the release states.

Too bad for this defendant that the Sheriff was not Steve Martin, since his classic "Cat Handcuffs" routine talks about a trusted cat who embezzled fom the comedian to buy $3000 worth of cat toys. 

August 8, 2009 in Sex Offender Sentencing | Permalink | Comments (4) | TrackBack

"Free 40,000 California inmates? Not so fast."

CALPRISON_P1 The title of this post is the headline of this new article in The Christian Science Monitor.  Here are some excerpts from an effective piece:

Is California about to open its prison gates, freeing more than 40,000 inmates?  Earlier this week, a federal judicial panel gave the state 45 days to come up with a plan to cut its prison population in order to adequately care for its inmates.

But don't expect inmates to be freed from any of California's 33 adult prisons next month.  Even if prison officials come up with a plan that both lawmakers and the federal court justices accept, the state would have two years to carry out any reduction.

If the court does actually mandate a release, the state would appeal that ruling to the US Supreme Court. Right now, state lawyers are still reviewing the justices' 184-page decision that was issued Tuesday.  "All the court has asked for in this ruling is for the state to develop a plan in 45 days … so the legal question is whether or not the state can appeal a ruling that directs us to come up with a plan," says Seth Unger, press secretary for the California Department of Corrections and Rehabilitation....

The judges want to see a reduction in population to "137.5 percent of the adult institutions' total design capacity."  Prison population is now at 195 percent of capacity, according to Mr. Unger. "But design capacity can be somewhat misleading.  Capacity is based on one inmate per cell…. You can put two inmates in a cell and have them safely housed," he says....

The state government doesn't dispute that prisons are overcrowded – Gov. Arnold Schwarzenegger declared an emergency over the issue in October 2006.  But California Corrections Secretary Matthew Cate says the justices overstepped their authority in forcing the state to come up with a plan....

Independent of this week's court order, the state has already proposed several ideas for lawmakers to ponder.  These proposed measures could result in a reduction of some 27,000 inmates and save the state $1.2 billion in one year.

August 8, 2009 in Scope of Imprisonment | Permalink | Comments (6) | TrackBack

August 7, 2009

Fourth Circuit rejects DC sniper's capital habeas appeal

Proving that it need not take decades to move capital appeals through the court system, the Fourth Circuit this afternoon upheld the Virginia death sentence of John Allen Muhammad, the so-called DC sniper who randomly shot sixteen people and killed ten.  As the Fourth Circuit panel opinion in the case details, Muhammad's death sentence was formally entered in March 2004.  As often happens in Virginia capital cases, Muhammad's appeals have gone through all direct review and various stages of capital review in just a matter of years, rather than taking multiple decades.

Though Muhammad can still seek en banc review and petition for cert, all of his viable appeals likely will be completed relatively soon.  Virginia then can — and likely will — seek an execution date, and Muhammad's death sentence may be carried out while lots of people can still remember the nature and horror of his crimes.  Though I am not completely familiar with all the legal issues in this case, my sense is that these proceedings — unlike many other capital cases — have been handled in a manner that should impress and comfort everyone except those categorically opposed to capital punishment.

The Washington Post has this article, headlined "Court Rejects Sniper's Appeal: Ruling Leaves John Allen Muhammad Few Options for Avoiding Execution," about today's Fourth Circuit ruling.

UPDATE:  A few commentors spotlight that the Fourth Circuit ruling shows that Virginia prosecutors actually did a poor job with its Brady obligation, so perhaps I am too quick to praise the legal process in this case.  But I still have little problem praising the result in this high-profile, poster-child case for the death penalty.

August 7, 2009 in Death Penalty Reforms | Permalink | Comments (14) | TrackBack

President Obama nominates his first(?) non-judge to the circuit courts

Thanks to this post at How Appealing, I see that President Obama has made two more nominations to the federal circuit courts.  This official press release provides the basic details:

President Obama today announced that he has nominated Jane Stranch for a seat on the United States Court of Appeals for the Sixth Circuit and Judge Thomas Vanaskie for a seat on the United States Court of Appeals for the Third Circuit. Stranch is currently a partner at Nashville law firm Branstetter, Stranch and Jennings.  Judge Vanaskie currently sits on the United States District Court for the Middle District of Pennsylvania.

As the title of this post indicates, I am pretty sure (but not entirely certain) that the nomination of Jane Stranch to the Sixth Circuit makes her the first of (seven?) circuit nominees who is not already a confirmed federal district court judge. 

Meanwhile, Josh Gerstein notes in this post at Politico, which is entertainingly headlined "For judges, Obama still drives 55," that both of the new appointees are older than some commentators might like.

Some related old and new posts on judicial appointments:

August 7, 2009 in Who Sentences? | Permalink | Comments (2) | TrackBack

"Judge urges Obama to cut coke dealer's sentence"

The title of this post is the headline of this effective new piece by Josh Gerstein now up at Politico.  Here is how it starts:

A federal judge is calling attention to President Obama's uncertain stance on executive clemency by making a rare judicial plea for a presidential commutation of a drug convict. In an opinion issued Wednesday, U.S. District Court Judge Paul Friedman urged President Barack Obama to reduce the 27-year sentence Friedman imposed on Byron McDade back in 2002 after a jury found him guilty of conspiring to distribute more than five kilos of cocaine.

"Twenty-seven years is a very long time," Friedman wrote. "None of Mr. McDade's former co-defendants or co-conspirators received more than a seven-and-one-half year sentence. While each of them pled guilty and provided substantial assistance to the government by testifying against Mr. McDade (and some provided assistance in other ways), this sentence is disproportionate."

Friedman said that when McDade was sentenced, federal sentencing guidelines required the 324-month term. Those guidelines became advisory as the result of a Supreme Court decision in 2005, but Friedman said he had no authority to re-open McDade's sentence even though someone sentenced after him for the same offense may have gotten a much shorter term.

However, in an unusual move, the judge made a public appeal to Obama to use his constitutional power to shorten the convict's sentence. "The Court urges the President to consider executive clemency for Mr. McDade and to reduce Mr. McDade's sentence to fifteen years in prison followed by...supervised release," the judge wrote.

Judge Friedman's full opinion in US v. McDade is available at this link.  Here is more of what Judge Friedman had to say at the close of the opinion to explain his concerns with the sentence the defendant is serving:

Indeed, had Mr. McDade not exercised his constitutional right to a jury trial and instead pled guilty, the likely sentence under even a mandatory Guideline regime would have been approximately 168 months, approximately half the sentence the Court was required to impose after Mr. McDade was found guilty at trial.  Had the Sentencing Guidelines been advisory in 2002, or if Booker were retroactive now, the Court would vary substantially from the Guideline sentence of 324 months.  This Court, however, is without authority to reduce Mr. McDade’s sentence at this juncture.

As regular readers know, President Obama's failure to grant even a single clemency through now his second 100 days in office should keep McDade from expecting too much in response to Judge Friedman's call for presidential action.  Nevertheless, I think it is useful (and could eventually be consequential) for judges to vocally express concerns with particular sentencing outcomes they may be obliged by law to impose or uphold.

Some related posts on clemency:

August 7, 2009 in Clemency and Pardons, Sentences Reconsidered | Permalink | Comments (12) | TrackBack

You be the judge: what sentence should mom get for drunken breastfeeding?

Earlier this summer, I noted here the North Dakota story of a mother who pleaded guilty to child neglect after police found her “extremely intoxicated” while breast-feeding her 6-week-old baby.  As detailed in this new piece from the Grand Forks Herald, this mom is scheduled to be sentenced this morning: 

The sentencing of a Grand Forks mother who police say was “extremely intoxicated” while breastfeeding her 6-week-old is set for 11 a.m. today. Stacey Anvarinia, 26, pleaded guilty to child neglect, a Class C felony, in state District Court in June.

Grand Forks police responded to a domestic disturbance at Anvarinia’s home in February. Officers reported that she was drunk and breastfeeding.  The child was taken to Altru Hospital, and Anvarinia was arrested . The unusual case has stirred debate and grabbed international attention.

Authorities have emphasized that breastfeeding while drunk was not the only reason for Anvarinia’s arrest, saying she was intoxicated to the point of not being able to care for her child.  Anvarinia, who is no longer in custody, faces a maximum penalty of five years in prison and a $5,000 fine.

UPDATE:  The Grand Forks Herald has this news update, headlined "Grand Forks mom receives 6 months in breastfeeding case."

August 7, 2009 in Offense Characteristics | Permalink | Comments (10) | TrackBack

"Iran Executions Increase Since Election"

The title of this post is the headline of this report from CBS News.  Here are the details of how politics and punishment mix in Iran:

An Iranian justice official has confirmed the execution of 24 convicted drug traffickers at the end of July, believed to be one of the largest mass-executions carried out by the Islamic Republic since the revolution brought the Ayatollahs to power 30 years ago.

The message of swift, decisive "justice" delivered by Iran's leaders is clear, and comes at a time when those leaders, both political and religious, are wrestling to overcome an image of internal dispute and reassert their authority following post-election violence that left at least 30 people dead and hundreds jailed.  Tehran's deputy prosecutor, Mahmoud Salarkia, said the 24 were hanged at the notorious Karaj prison on July 30th. "Their execution was approved by the supreme court," said Salarkia, without naming the prisoners.

Iran has killed at least 219 prisoners already this year, according to a tally from the French news agency AFP, and the pace of the executions seems to have increased amid the postelection turmoil....

Iran has executed at least 44 drug convicts, 19 Baluch minorities convicted of supporting a terrorist group, and possibly two young men sentenced for murders they allegedly committed before the age of 18.

Thus far, international outrage over the supposedly coincidental uptick in executions amid the postelection turmoil has been muted, at best.  The European Union condemned the July 30 executions and said in a statement that the 27-member bloc was "concerned about the continued large-scale use of the death penalty in Iran, including the repeated incidence of collective executions during the past month."...  The United States government has made no official remarks on the sanctioned killings.

Iran came second only to China in the number of prisoners executed during 2008, with a reported total of 246.  China is believed to have killed as many as 5,000 of its convicts, but that number is unconfirmed.  In the United States, by comparison, 37 people were executed in state death chambers, according to the Death Penalty Information Center.

August 7, 2009 in Sentencing around the world | Permalink | Comments (3) | TrackBack

Jefferson (advisory) jury calls for big forfeiture

As detailed in this article, which is headlined "Jefferson faces financial hits at sentencing: Jury says he should forfeit shares, $470,653," former representative William Jefferson is already dealing with some tough sentencing realities in the wake of his bribery conviction. Here are the basics:

The same jury that convicted the Louisiana Democrat of 11 of 16 corruption charges decided Thursday that he should forfeit $470,653 he collected from his illegal schemes. The jury also said the government should seize stock shares of indeterminate value that Jefferson also received as bribes.

Judge T.S. Ellis III will issue a final forfeiture order when he sentences Jefferson.  The judge scheduled the sentencing hearing for Oct. 30.

In most bribery and racketeering cases that produce guilty verdicts, forfeiture issues are decided directly by the judge.  But the Jefferson legal team chose to exercise its legal right to have a jury hear the issue.

When asked why the Jefferson team made the unusual move of requesting a jury to hear the forfeiture case, lawyer Robert Trout said without elaboration, "We believe in the jury system."  The case took less than the whole morning session Thursday to hear.  The jury reached its decision, which is a recommendation that does not bind Judge Ellis, before the end of the afternoon.

Jefferson, 62, faces up to 150 years in prison, though federal sentencing guidelines will undoubtedly call for a far shorter sentence.  Prosecutors have said the guidelines could suggest a prison term of more than 20 years.

August 7, 2009 in Celebrity sentencings | Permalink | Comments (6) | TrackBack

August 6, 2009

Remarkable coda at end of First Circuit opinion affirming child porn sentence

The First Circuit yesterday in US v. Stone, No. 08-1459 (1st Cir. Aug. 5, 2009) (available here), affirmed a long within-guideline sentence for a first offender in a child porn case.  The opinion talks through a number of sentencing issues, though what make the ruling  blog-worthy is this remarkabl final paragraph in Stone:

We add a coda.  Sentencing is primarily the prerogative of the district court, and the sentence imposed in this case is within permissible limits.  There is no error of law and no abuse of discretion.  That said — and mindful that we have faithfully applied the applicable standards of review — we wish to express our view that the sentencing guidelines at issue are in our judgment harsher than necessary.  As described in the body of this opinion, first-offender sentences of this duration are usually reserved for crimes of violence and the like. Were we collectively sitting as the district court, we would have used our Kimbrough power to impose a somewhat lower sentence.

This coda — which strikes me as truly unprecedented — surely provides little solace to the defendant whose long prison sentence was affirmed.  But it should provide inspiration and assistance to practitioners and judges within the circuit who might otherwise worry about how the First Circuit would view significant downward variances from the child porn guidelines in other cases.

 Some related federal child porn sentencing posts:

August 6, 2009 in Booker in the Circuits | Permalink | Comments (2) | TrackBack

We now get to call her Justice Sotomayor

This National Law Journal article provides the official SCOTUS transition news following this afternoon's vote by the US Senate:

The Senate has confirmed Judge Sonia Sotomayor to the Supreme Court in a historic vote that will make her the nation's first Hispanic justice and the third woman appointed to the Court.

Sotomayor, born in New York City to parents who moved there from Puerto Rico, won over nine Republican senators to go with the 59 members of the Democratic caucus who were present. The final margin of 68-31 was larger than the 58-42 vote three years ago for Justice Samuel Alito Jr., but it was still a smaller margin than other justices have received.

The vote gives President Barack Obama's administration a significant, early win in the judicial confirmation wars. Smaller battles are just over the horizon, as the Senate considers whether to confirm Obama's first nominees for federal circuit courts....

Sotomayor replaces retired Justice David Souter, who spent 19 years on the Court but submitted his resignation this spring to return to New Hampshire. No plans for Sotomayor's swearing-in have been announced, but she is likely to take her seat within days if not hours.  She will participate in her first oral argument next month, when the Court rehears the campaign finance case Citizens United v. FEC.

As this piece highlights, Justice Sotomayor is going to have to hit the ground running because of the unusual reargument scheduled for September.  In addition, there is a big pile of summer cases in which cert has been requested that, I assume, she will get a chance to consider in some way.  And, as I stressed in my very first substantive post about the Sotomayor nomination, she is now the Justice with the most personal sentencing experience, and she will have to jump right into the dynamic Eighth Amendment debate that surrounds Graham and Sullivan, the two juve LWOP cases from Florida on the SCOTUS docket this fall.

UPDATE:  As this post at The BLT notes, Sonia Sotomayor will be sworn in by Chief Justice John Roberts Jr. on Saturday at 11 am. at the Supreme Court.  Apparently it is notable that this swearing in will take place at the Court rather than at the White House, and it means the new Justice will be in the right place to get cracking with her new job this weekend.

August 6, 2009 in Who Sentences? | Permalink | Comments (18) | TrackBack

Jury sentencing system in Japan has lay citizens and judges working together

I noted earlier this week that Japan was conducting its first criminal jury trial in decades and that its new jury system was to include sentencing responsibilities.  This BBC News piece provides a fascinating report on the result of the first trial:

Japan's first jury trial for more than 60 years has ended with a man in his 70s being sentenced to 15 years in prison for murder. The new jury system is the result of a major overhaul of Japan's legal system, aimed at speeding up trials and offering greater transparency.

In the landmark case, six men and women working with three judges convicted and sentenced Katsuyoshi Fujii, 72. Until now Japanese trials have been decided by a panel of judges.

The last time a citizen jury was part of a Japanese trial was in a short-lived experiment before World War II. Since then, the system has been prosecution-led, largely based on confessions and with little emphasis on court testimony....

Fewer people go to jail in Japan than in the West. But the conviction rate -- 99% of all cases -- is astronomic by Western standards, our correspondent adds. Critics say the old system was slow, lacked transparency and was out of touch.

The jury system has also come in for criticism, with some experts arguing that randomly selected members of the public are not fit to decide the outcome of serious criminal cases.

In the new system, the jurors -- who are considered lay judges -- must have the agreement of at least one of three professional judges for their decision to stand. They also decide on the sentencing.

During the four-day trial in Tokyo District Court, the citizen judges questioned the defendant over the fatal stabbing of a 66-year-old neighbour in May. Fujii had pleaded guilty but his lawyers sought leniency in the sentencing.  Murder can result in the death penalty in Japan, although it is rare in cases involving a single victim.

Presiding Judge Yasuhiro Akiba said the jury had sentenced the defendant to 15 years in jail -- one year short of what prosecutors had sought -- because the stabbing was not premeditated. The citizen judges later said it had been difficult to decide on the sentence, but they praised the professional judges, prosecutors and defence team for making their arguments easy to follow.

As I mentioned before, in my recent Sidebar commentary for the Columbia Law Review, I assert that the conceptual and constitutional principles behind the Apprendi-Blakely line of cases justify greater jury involvement in both capital and noncapital sentencing proceedings.  And I especially like the idea that Japan is now pioneering of lay jurors and professional judges working together to decide upon a sentence.

A few follow-up questions for SL&P readers: Should hybrid judge-jury sentencing be worth trying in some American jurisdictions for at least some crimes?  Need a state interested in this new Japanese model have to worry if it was constitutionally kosher in the US?

August 6, 2009 in Sentencing around the world | Permalink | Comments (3) | TrackBack

Ninth Circuit affirms above-guideline child porn sentence over various objections

The Ninth Circuit today affirms an above-guideline sentence today in US v. Vanderwerfhorst,, No. 07-30336 (9th Cir. Aug. 6, 2009) (available here).  The substantive result here is not too surprising because the defendant, despite having a name with Fletch qualities, seems like a pretty bad dude.  But the Ninth Circuit covers a lot of notable sentencing law in a short space, and here is how the opinion starts:

We are once again asked to review the sentencing procedure where the underlying crime itself is not at issue. Jared Vanderwerfhorst, a convicted sex offender, pled guilty to one count of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2).  On appeal, he contends that the district court violated the notice requirement of Federal Rule of Criminal Procedure 32(h) when the court imposed a sentence above the advisory range set forth by the U.S. Sentencing Guidelines (“Guidelines” or “U.S.S.G.”).  He also claims the court committed procedural error by relying upon unreliable information and assumptions and by failing to adequately explain the sentencing determination.  We have jurisdiction pursuant to 28 U.S.C. § 1291.  We reject Vanderwerfhorst’s arguments and affirm.

August 6, 2009 in Sex Offender Sentencing | Permalink | Comments (0) | TrackBack

"Inmate Hides Gun In Fat Layers"

The title of this post is the headline of this local news story from Texas.  Here are the basics:

A nearly 600-pound man was able to hide a weapon for more than a day while he was in custody, police told KPRC Local 2 Wednesday. "Obviously the system broke down," former Harris County Detention Major Mark Kellar said. "The procedures didn't work as they were designed to work."

Houston police said George Vera, 25, was arrested Aug. 2 and taken to the city jail.  He spent a day there before being transferred to the Harris County Jail. After being there for 14 hours, going through intake procedures, he was taken to the showers, the final step before going to his cell. There, Vera told police he had a 9mm handgun on him, along with 2 clips.

"If a person has a weapon, narcotics, anything of danger, it should have been found before he winds up in the county jail," said Kellar.  Kellar said Vera should have been searched at least three times before getting to the jail.

Vera weighs nearly 600 pounds and the gun was allegedly hidden between fat layers. Houston Police Officers Union President Gary Blankinship said cadets are trained how to search morbidly obese people. "We teach officers to lift up and look under," Blankinship said. "The officer may not have arrested anyone this big before."

August 6, 2009 in Prisons and prisoners | Permalink | Comments (4) | TrackBack

NBA's crooked ref results in interesting restitution ruling from Second Circuit

The Second Circuit today has an interesting ruling on restitution awards in US v. Battista, No. 08-3750 (2d Cir. Aug. 6, 2009) (available here).  Here is how it starts:

Defendant-Appellant James Battista appeals from a judgment of the United States District Court for the Eastern District of New York (Amon, J.), entered on July 24, 2008, convicting him, after a guilty plea, of conspiracy to transmit wagering information in violation of 18 U.S.C. §§ 371, 1084. Battista was a co-conspirator, along with Thomas Martino, in the much-publicized National Basketball Association (“NBA”) gambling scandal involving former referee Timothy Donaghy. Following guilty pleas by all three defendants, the NBA, and the United States on its behalf, sought restitution.  The district court determined that each defendant was required to pay restitution to the NBA as a victim of their criminal offenses.  Only Battista challenges the imposition of restitution on appeal. For the reasons that follow, we affirm the restitution order of the district court.

August 6, 2009 in Criminal Sentences Alternatives, Victims' Rights At Sentencing | Permalink | Comments (4) | TrackBack

NC Racial Justice Act going to governor's desk

This local story, headlined "Racial Justice Act passes, now goes to Perdue," provides the latest news on a notable death penalty bill that may be on the verge of becoming law in North Carolina:

The General Assembly has approved a landmark bill that will allow death-row inmates to challenge the death penalty by arguing that there is systemic racial bias in the way that capital punishment has been applied. 

Under the bill, which is expected to be signed into law by Gov. Bev Perdue, an inmate will be able to present statistical evidence showing racial disparities in how the death penalty has been used. If a judge finds the evidence convincing, the judge can overturn that inmate's death sentence and convert it to a sentence of life in prison.  Similarly, in future murder trials in North Carolina, judges will be able to block prosecutors from pursuing the death penalty if they find a historical pattern of racial bias in the use of the death penalty.

The bill is seen by its supporters as a long-overdue solution to a history of discrimination that they say permeates the criminal-justice system and the system of capital punishment.  Opponents, including prosecutors and victims' groups, say that the bill substitutes statistical data and historical trends for the particular facts of a case. It will, they say, set up an enormous roadblock for capital punishment and reopen old wounds for the families of murder victims.

The bill, which supporters named the N.C. Racial Justice Act, has been the subject of intense debate and legislative wrangling for months.  Last night, the N.C. Senate voted 25-18 to adopt a version of the bill that had been approved by the N.C. House last month.  In both chambers, Republicans opposed the bill, and most Democrats supported it.

The Senate's vote sends the bill to Perdue, a Democrat.  A spokesman for Perdue said that she will closely review the bill but is likely to sign it.  If she does, North Carolina will become just the second state — after Kentucky — to enact a law allowing challenges to the death penalty on the basis of statistical disparities from previous cases.

As I have noted in the past, it is not clear what (if any) impact Kentucky's law on this issue has impacted the operation of that state's capital punishment system.  Thus, I am hesitant to assert that the enactment of the N.C. Racial Justice Act will have a profound practical impact.  And this legislative development is still symbolically interesting and important even if it does not end up having a profound effect on death penalty practices in North Carolina.

August 6, 2009 in Death Penalty Reforms, Race, Class, and Gender | Permalink | Comments (2) | TrackBack

Seventh Circuit goes into the woods and splits over career offender enhancement

Woods Despite the fact that the Supreme Court has issued a series of opinions recently concerning what prior offenses qualify for various criminal history enhancements under federal law, these issues remain a murky doctrinal mess.  This reality is born out by a split ruling from the Seventh Circuit yesterday in US v. Woods, No. 07-3851 (7th Cir. Aug. 5, 2009) (available here). Here is how the significant majority opinion, per Judge Wood, gets started:

Vernon Woods was convicted of two counts of distributing ecstasy, in violation of 21 U.S.C. § 841(a)(1), and one count of possession of a weapon by a felon, in violation of 18 U.S.C. § 922(g). The district court found that Woods was a career offender and thus was subject to an enhanced sentence under § 4B1.1 of the United States Sentencing Guidelines. The court imposed a sentence of 192 months, well above the 84-month sentence Woods might have received without the career offender enhancement. Woods now appeals his sentence, challenging whether, following the Supreme Court’s decision in Begay v. United States, 128 S. Ct. 1581 (2008), and this court’s decision in United States v. Smith, 544 F.3d 781 (7th Cir. 2008), his prior conviction for involuntary manslaughter — which required only a finding of recklessness — qualifies as a prior violent felony conviction for the purpose of the Guidelines.  We conclude that Begay and Smith resolve this question in Woods’s favor, and we therefore vacate the judgment of the district court and remand for further proceedings.

Here is how the dissent, per Judge Easterbrook, gets started and ends:

Begay v. United States, 128 S. Ct. 1581 (2008), called into question many of this court’s decisions interpreting U.S.S.G. §4B1.2(a)(2) and similar recidivism provisions, such as 18 U.S.C. §16(b) and §924(e)(2)(B)(ii).  Last January the court set for argument before two panels several appeals that presented issues affected by Begay.  As it happens, the six judges on those panels do not agree on how Begayapplies, so proposed opinions in two cases were circulated to the full court under Circuit Rule 40(e).  We decided to resolve the disputes through this circulation, without argument en banc. The approach proposed by the panel in Woods has the support of a majority and becomes the law of the circuit.  I disagree with some aspects of the panel’s analysis and would proceed differently....

When a recidivism enhancement raises the statutory floor under a sentence, or the maximum allowable sentence, a court should be punctilious about ensuring that the enhancement applies.  But when the prior conviction just affects an exercise of discretion, the approach should be more flexible: when selection of the sentence is not governed by rule, why employ elaborate rules about “divisibility” and “recklessness” that the district judge may elect to bypass in the end?

For anyone not concerned with all the federal sentencing complications for repeat offenders, the opinions in this case can be readily forgotten like old Brothers Grimm fairy tales.  But, for the many folks regularly beset by these often-consequential criminal history issues, it is now essential to head into the Seventh Circuit's Woods.

August 6, 2009 in Offender Characteristics | Permalink | Comments (0) | TrackBack

August 5, 2009

California AG Jerry Brown assails federal panel ruling demanding prisoner release

The Los Angeles Times has this new report on the reaction of California's tough-on-crime(?) attorney general to the ruling yesterday (discussed here) by a panel of federal judges that the California prison system must reduce its inmate population drastically within two years.   Here are excerpts:

Atty. Gen. Jerry Brown has denounced a court order to release more than one out of every four state prisoners in California as counterproductive interference by judicial activists, and said state officials were still deliberating Wednesday whether to appeal to the U.S. Supreme Court.

While acknowledging that Tuesday's ruling by a three-judge federal panel aims to resolve the same problems with severe prison overcrowding that Gov. Arnold Schwarzenegger wants, Brown said the court's latest edict on how to improve the corrections system has only contributed to the "Kafka-esque nightmare" confronting the cash-strapped state....

Brown, who is expected to run for governor next year, said he would recommend to Schwarzenegger that the state appeal the court decision imposing a cap on California's prison population that will require the release of nearly 43,000 prisoners over the next two years. The judges gave the state 45 days to come up with a plan for reducing the number in state custody or face a court order on how to do it.

Asked if Californians were in peril if the state meets the court's demand to bring the prison population down to 137% of designed capacity, or 115,080 instead of the roughly 158,000 currently in state prisons, Brown wavered, noting that about 10,000 prisoners are already released every month after completing their sentences. A 70% recidivism rate keeps them coming back though, he said.  "The formula for letting out 40,000 prisoners and cutting cops is not a smart one," Brown said, referring to the budget crises forcing local communities to make trims in law enforcement.

Although he excoriated the judges' order as unnecessary and costly interference in a problem already being tackled by the governor and the Legislature, Brown acknowledged that state lawmakers also were to blame for letting partisan politics prevent their agreement on reforms needed to improve rehabilitation programs, pre-release screening and parole.

I am already looking forward to seeing what California's cert. petition looks like in this case, though I have a feeling this case will not get o the Justices anytime soon.

August 5, 2009 in Who Sentences? | Permalink | Comments (6) | TrackBack

"Want to be a corporate criminal? Move to Canada"

The title of this post is the headline of this sharp commentary from Canada's Globe and Mail paper in response to today's sentencing of two high-profile corporate fraudsters up north.  Here are excerpts from the piece:

Madam Justice Mary Lou Benotto wants to send a message to white-collar crooks like Garth Drabinsky: Our justice system will deal with you severely.  As she sentenced the former impresario to seven years in prison Wednesday, she argued that a crime like his is serious, because it “fosters cynicism [and] erodes public confidence in the financial markets.”  Sternly, she noted, “Those in business must know that this must be the response.”

In fact, those in business must know Canada is a fine place to fleece the innocent and cook the books.  Not for us the crusading prosecutors, the quick indictments, the speedy trials, and the lifetime jail sentences so popular in the United States.  Here, you can be pretty sure the law will take years to catch up to you (if it ever does). In the event you are found guilty, the penalty won't be so bad.

Thanks to our generous parole provisions, Mr. Drabinsky could get out of jail after 14 months or so.  Not that he's going to the slammer any time soon.  Not until his lawyer exhausts the appeals. “In the U.S., he probably would have been tried eight or nine years ago,” says forensic accountant Al Rosen, who thinks Canada's systematic failure to prosecute corporate fraud is a bad joke.  “And he probably would've got 20 to 40 years.”

Today, after a decade of hefty legal bills, Mr. Drabinsky is so broke he has been reduced to begging money off distant acquaintances in exchange for discounts at his Yorkville art gallery.  On the other hand, 10 years of freedom (and counting) may well be worth it.  Journalists who began covering the Livent debacle early in their careers have grey hair now. Perhaps that explains the sense of anticlimax in the courtroom yesterday.

Compared to the obscure manipulations of Conrad Black (part of whose conviction may well be overturned by the U.S. Supreme Court), the fraud scheme carried out by Mr. Drabinsky and his partner, Myron Gottlieb, was plain vanilla. It involved an old-fashioned kickback scheme and a years-long effort to dupe the shareholders by making Livent's financial picture look far brighter than it was. The most surreal moment of the trial came when lawyer Eddie Greenspan (who also acted for Lord Black) proposed that instead of doing jail time, his client could embark on an inspirational speaking tour with the goal of urging young people to pursue their dreams in the performing arts. Had he made a similar proposal for Lord Black, he'd have been laughed right out of Chicago.

Lord Black, unlike Mr. Drabinsky, will have to serve almost all of his 61/2-year sentence. Mr. Drabinsky could well get out of jail first.  Surely, Lord Black (who stood by his old friend when times got tough) must be tempted to contemplate the unfairness of it all.  After all, if Canada and not the United States had gone after him, chances are he'd still be a free man....

Back in court, the judge had more tough words. “Members of the business community must be put on notice that honesty is the currency in which they trade,” she said.  “If they stray, the punishment will be certain and severe.”  Stirring words indeed.  If only the system worked that way.

For more of the basics on the case and the sentencing, this piece from the Ottawa Citizen provides the essential details.

August 5, 2009 in White-collar sentencing | Permalink | Comments (3) | TrackBack

Another former member of Congress now has to worry about the federal sentencing guidelines

As detailed in this New York Times piece, another prominent politician who once only worried about what federal sentencing rules meant for others now has to worry a lot about what these rules might mean for him:

Former Representative William J. Jefferson was convicted Wednesday afternoon of using his office to try to enrich himself and relatives through a web of bribes and payoffs involving business ventures in Africa.

A federal court jury in Alexandria, Va., deliberated for five days before finding Mr. Jefferson, 62, a New Orleans Democrat who served in Congress for 18 years until being defeated in 2008, guilty of 11 of 16 counts of bribery-related crimes.  The jurors thus rejected defense assertions that Mr. Jefferson’s business-promotion activities in Africa did not qualify as “official acts” under public corruption laws. Mr. Jefferson faces a long prison term, unless his conviction is overturned on appeal.

In a six-week trial before Judge T.S. Ellis, prosecutors said that from 2000 to 2005, Mr. Jefferson sought hundreds of thousands of dollars in bribes from a dozen companies involved in oil, communications, sugar and other businesses, often for projects in Africa.  In return, prosecutors said, the Mr. Jefferson used his position as a member of the House Ways and Means trade subcommittee to promote the companies’ ventures without disclosing his own financial stakes in the deals.

Mr. Jefferson led official delegations to Africa, wrote letters to American and foreign officials and had members of his staff promote ventures in Nigeria, Ghana and Equatorial Guinea in which he had a financial interest, prosecutors said. While he sought millions of dollars in bribes, Mr. Jefferson may have actually received less than $400,000, the prosecutors said.

I do not know enough about the ins-and-outs of the applicable guideline to make a quick guess at what kind of sentencing range Jefferson might be facing, but I suspect the government is not going to be in a mood to go easy on him with its recommendation.

August 5, 2009 in Celebrity sentencings | Permalink | Comments (1) | TrackBack

Why Second Amendment supporters need to be helping out Plaxico Burress

I just noticed this item from a New York-based website carrying this title, "Gun control 101: Plaxico Burress going to prison should end 2nd amendment confusion."  Here is a snippet:

Burress going to jail should be the final proof to anyone who thinks differently about the 2nd amendment applying to individuals instead of what it is: a constitutional guarantee that the states will always have the right to have their owned armed militias (today, the National Guard)....

So if the 2nd amendment applies to individuals where are the gun groups and the NRA, where are the 2nd amendment lawyers willing to challenge the law in court as being unconstitutional?  You cant have it both ways.  If the 2nd amendment applies to individuals then Burress' arrest and jail sentence is unconstitutional.

Burress of course being a star football player making about $10 million a year has access to the best legal counsel money can buy.  His legal counsel is trying to plea bargain for Burress and has offered a year in jail (the law carries a mandatory 3 1/2 years).  One thing is certain.  Burress is going to jail, the only question is for how long. Does that sound like a person has a fundamental constitutional right to keep and bear arms and that the right  cant be infringed?...

Burress is going to jail for carrying a concealed weapon without a permit within the New York City limits.  No one has said the law is unconstitutional.  And no one will.

Obviously, the author of this commentary has not been reading this blog, since I have been repeatedly questioning the constitutionality of New York's law in light of Hellersince Plaxico Burress first shot himself.  But the deeper point is that the failure of Second Amendment fans to speak up loudly in support of Plaxico's constitutional rights to gun possession for self-protection enables gun control supporters to use a high-profile case to undermine arguments for Second Amendment rights.  Unless and until Second Amendment supporters fight back on the Plaxico front (with at least some gun rights rhetoric if not gun rights litigation) the general public will get the (justified?) impression that the Second Amendment remains legally inconsequential even after Heller.

Some related posts on the Burress cases:

UPDATE:  A number of commentators are making much of the fact that Plaxico Burress did not seek a permit for carrying a gun in New York City and suggest that he is justifiably and constitutionally punished for this failing.  In light of these comments, I will quote another notable portion of the above-linked commentary:

One thing is certain.  Burress is going to jail, the only question is for how long.  Does that sound like a person has a fundamental constitutional right to keep and bear arms and that the right can't be infringed?

And it really has nothing to do with the fact that Burress didn't have a permit.  Its close to impossible to get a concealed weapons permit from the NYPD in New York City.  No ordinary citizen can get one.  You have to prove you have a compelling reason to carry a concealed weapon and if the NYPD doesn't agree you don't get it....

Requiring a permit to have a gun is typcial in most states.  Can anyone name one single fundamental right in the constitution that requires a permit in order for a person to exercise that right?  Do you need a permit to practice your religion?  To be a journalist?  To write or publish anything you wish?  Do you need a permit not to testify against yourself?

Critically, my main point with this post and others concerning Plaxico's fate — as well as what I take to be the main point being made by the piece linked above — is that the seem to expose the apparent faint-heartedness of the many groups and politicians who in "safer" settings make a lot of noise about the importance of gun rights and the fundamental nature of the Second Amendment.  I do not think Plaxico necessarily has a slam-dunk Second Amendment claim — there is the issue of incorporation and other legal complications — but the basic fact that the usually vocal pro-gun folks have said so little  in Plaxico's defense suggests to me that few really, truly believe in or are prepared to vocally advocate a forceful and fundamental individual right to carry arms for self-protection.

August 5, 2009 in Second Amendment issues | Permalink | Comments (19) | TrackBack