October 13, 2009
Should there special doctrines concerning "inflammatory" pre-sentencing publicity?Among the fascinating aspects of the SCOTUS cert grant in the Skilling case today (basics here) is the pretrial publicity issue raised in the defendant's cert petition. Specifically, here is the second question presented in Skilling's cert petition:
When a presumption of jury prejudice arises because of the widespread community impact of the defendant’s alleged conduct and massive, inflammatory pretrial publicity, whether the government may rebut the presumption of prejudice, and, if so, whether the government must prove beyond a reasonable doubt that no juror was actually prejudiced.
Given that the first question presented in the Skilling cert petition relates to a fraud issue that is already before SCOTUS in two other cases, I cannot help but speculate that the Justices are somewhat interested in this separate claim related to "massive, inflammatory pretrial publicity." And though I am not fully up-to-speed on the jurisprudence concerning "inflammatory pretrial publicity," I cannot help but speculate (and hope?) that the Skilling case might indirectly prompt lawyers and jurists to give some consideration to whether "massive, inflammatory" pre-sentencing publicity could be the basis for some kind of due process claim in some extreme cases.
Recent related post:
Should we thank new Justices Alito and Sotomayor for all the big criminal law SCOTUS action?
As detailed in this SCOTUSblog post, three of the four cases in which the Supreme Court granted cert today involve criminal justice issues:
The Supreme Court agreed on Tuesday to rule on claims that “searing media attacks” on longtime Enron executive Jeffrey K. Skilling tainted his criminal trial and conviction on various fraud charges. The case of Skilling v. U.S. (08-1394) also raises an issue on the scope of the federal law punishing the failure to provide “honest services” as a corporate executive....
The other newly granted cases raise these issues: the scope of federal appeals courts’ authority to overturn a conviction that may have been based in part on conduct that was not criminal when it occurred (U.S. v. Marcus, 08-1341, a case in which Justice Sonia Sotomayor is recused, presumably because she was on the Second Circuit Court panel that decided the case earlier);... and whether “gross negligence” by a state-appointed defense attorney in a death penalty case provides a basis for extending the time to file a federal habeas challenge, in a case where the habeas plea was filed late despite repeated instructions from the client (Holland v. Florida, 09-5327).
And, as noted in this postfrom a few weeks ago, three other cases with big-time criminal justice implications were also recently put on the SCOTUS docket. Add to all this the fact that this Fall's schedule already included a whole bunch of very important criminal justice cases, and I am already prepared to predict that the most notable feature of OT 2009 is its large and consequential criminal law docket.
Though lots of forces surely have been playing a role in the recent docket dynamics, I cannot help but speculate that the addition to the Court of two former prosecutors has been an important factor in these developments. Both Justices Alito and Sotomayor likely find a range of criminal law topics inherently more interesting than their colleagues, and they also likely understand more fully how important clarity and certainty is to the work of all criminal justice practitioners. (Another factor could also being the likely upcoming retirement of Justice Stevens: he has always been very engaged in criminal justice cases, and he may be eager to have one last bite at a bunch of criminal law apples.)
Some related old and new posts on related issues:
- Roberts, the cert pool, and sentencing jurisprudence
- Can Roberts bring consensus to SCOTUS sentencing jurisprudence?
- Justice Alito jumping out of the cert pool!!
- Looking ahead to SCOTUS docket dynamics
- Final version of my article on the SCOTUS death docket
SCOTUS to review fraud convictions of Jeff Skilling, former Enron executive
As detailed in this AP report and this SCOTUSblog post, the biggest and perhaps highest-profile white-collar conviction of recent vintage is going to be reviews by the Supreme Court. Here is the SCOTUSblog report:
The Supreme Court agreed on Tuesday to rule on claims that “searing media attacks” on longtime Enron executive Jeffrey K. Skilling tainted his criminal trial and conviction on various fraud charges. The case also raises an issue on the scope of the federal law punishing the failure to provide “honest services” as a corporate executive. This was one of four cases granted review, to be argued early next year.
I am pretty sure there are no sentencing issues before the Court in the case, but I cannot help but have a feeling that the long sentence initially given to Skilling may have played at least some role in the Justices' determination that this case merited review.
Among the interesting sentencing-related issues going forward is whether Skilling will now request bail pending SCOTUS review. Conrad Black failed to get such bail when the Supreme Court took up his case, but he (a) had served less time, and (b) was subject to a much shorter sentence.
Split Sixth Circuit reverses SORNA failure-to-register conviction and affirms other sex offender sentenceThis morning in US v. Cain, No. 07-4535 (6th Cir. Oct. 13, 2009) (available here), a divided panel of the Sixth Circuit reverse a sex offender's federal conviction for failing to register under SORNA. Here is how the majority opinion starts:
This appeal requires us to determine when the registration requirements of the federal Sexual Offenders Registration and Notification Act (SORNA) became effective with respect to a defendant who had been convicted of a sexual offense before passage of SORNA. The Government indicted defendant Cain under 18 U.S.C. § 2250 for traveling from Ohio to Georgia sometime between October 16, 2006, and March 28, 2007, and failing to update his sex offender registration as required by state and federal law. The circuits are split on whether defendants with pre-SORNA convictions had to comply with SORNA before the Attorney General issued an implementing regulation. Because SORNA explicitly required the Attorney General to specify the applicability of the Act to persons convicted prior to the effective date of SORNA, and because the Attorney General did not promulgate a regulation making that determination in compliance with the Administrative Procedure Act, Cain was not subject to SORNA’s requirements during the period indicated in the indictment. Reversal is therefore required.
The Sixth Circuit today also split (in complicated ways) in affirming in another case the significant sentence given to "a decorated U.S. Air Force veteran in his mid-50’s" who pleaded guilty to one count of traveling with intent to engage in illicit sexual conduct with a teenager. The ruling in US v. Lay, No. 07-4062 (6th Cir. Oct. 13, 2009) (available here), is perhaps another (lengthy) must-read for anyone dealing with federal sex offense cases these days.
"Should Freedom of Worship Apply to Sex Offenders?"The title of this post is the headline of this new item at the"Civil Religion" section of the St. Louis Post-Dispatch, which riffs off the recent AP story discussing a North Carolina sex offender suing to protect his right to attend church. In response to the AP story, I wondered in this post "What would Jesus do?" and this St. Louis Post-Dispatch columnist asks a similar question:
After all, he was known to hang out with some unsavory characters in his day: liars, cheats, thieves, prostitutes, violent militants. Heck, some of these he even invited into his inner circle!
However, missing from that list is sex offenders. I wonder, would Jesus have been as quick to accept them?
Some recent related posts:
- "Banned from churches, sex offenders go to court"
- Pastor and city leaders fighting over sex offender working at church in California
- WWJD about the conflict between religion and restrictions on sex offenders?
Texas legislature to start looking into Willingham caseThis news update from the Dallas Morning News, headlined "Senate committee will examine Todd Willingham case," provides this report on the latest developments surrounding the Todd Willlingham case investigation:
Sen. John Whitmire said to mark Nov. 10 on the calendar in pencil. That's when he expects the Senate Criminal Justice Committee to convene a special hearing to see what's going on with the Texas Forensic Science Commission and its investigation into the arson evidence used in the Cameron Todd Willingham case.
The young and little-known agency was upended by Gov. Rick Perry, who replaced his four appointees on the board about 10 days ago. His office said the governor was just trading out appointees whose terms had ended, but there are several indications that Perry was concerned about the direction of the investigation. First, his assistant general counsel started sitting in on their meetings. Second, his four appointees got the hook just two days before a big public hearing on the Willingham case.
Willingham was executed after a review by Perry in February 2004. Perry has been dismissive of arson experts and scientists who now say there was virtually no evidence of arson in the case. But scrutiny of the Willingham conviction has been gathering steam and anti-death penalty advocates are highlighting it as a case of an innocent man executed.
Recent related posts:
- Will new evidence of Texas executing an innocent man alter modern death penalty debates?
- How will death penalty proponents respond to "Trial by Fire"?
- Texas Governor Perry disrupts panel looking into Willingham capital case
- Still more changes in Texas panel looking at potential wrongful execution
October 12, 2009
A big SCOTUS oral argument week on tap for sentencing fans
As detailed in this SCOTUSblog post and in this CrimProf post, the Supreme Court is hearing oral argument on three notable sentencing-related cases during this abbreviated week. Specifically, these three (of my list of top 10) sentencing cases to watch this term are to be argued in the next two days (with links and descriptions from SCOTUSwiki):
To be argued Tuesday, October 13:
- Padilla v. Commonwealth of Kentucky (08-651) — effect of defense lawyer’s wrong advice on consequences of a guilty plea
- Smith v. Spisak (08-724) — unanimity of jury as an issue in finding mitigating evidence in a capital case
To be argued Wednesday, October 14:
- Alvarez v. Smith (08-351) — right to court hearing to challenge forfeiture for a drug crime
I suspect that Spisak and Alvarez might get the most press attention, but I think Padillais the case that could prove to be the most consequential. All three cases are likely to be quite significant if the Justices ultimately resolve them in "big" ways; all three may well be forgotten before long if the Justices embrace a minimalist approach to their decision-making. As always, I heartily welcome and encourage pre-argument predictions and punditry on any or all of these SCOTUS cases in the comments.
"The High Cost of Empty Prisons"The title of this post is the headline of this op-ed in today's New York Times. Here are excerpts:
Last Wednesday, changes to New York’s notorious Rockefeller drug laws went into effect, allowing judges to shorten the prison terms of some nonviolent offenders. This measure will further reduce New York’s prison population, which has already declined, in the past 10 years, from about 71,600 in 1999 to about 59,300 today. (The state’s crime rate also dropped substantially during that time.)
Nevertheless, mainly because of opposition from the correction officers’ union and politicians from the upstate areas where most of our correctional facilities are, the state has been slow to close prisons. It was not until earlier this year that policymakers in Albany, confronted with fiscal crisis, mustered the will to shut three prison camps and seven prison annexes — a total of about 2,250 prison beds — in a move that is expected to save $52 million over the next two years.
But the state could go further. The prison system still has more than 5,000 empty beds in 69 prisons. What’s more, there are other ways to lower the prison population. For starters, state lawmakers could repeal the Rockefeller mandatory sentencing provisions that remain on the books. They could also increase the number of participants on work release. In 1994, more than 27,000 people were in this time-tested program that helps them manage the transition back to their communities. Today, about 2,500 are enrolled.
In addition, the state could reduce the number of people — last year, more than 9,000 — who are returned to prison for technical parole violations like missing a meeting with an officer or breaking curfew. Most experts agree that for about half of these people it would be safer and smarter to enroll them in re-entry programs or provide more supervision. Also, more prisoners with good institutional records could be given parole. And eligibility for so-called merit time, which reduces prison terms for inmates who complete educational and other programs, could be expanded to people convicted of violent offenses many years ago....
New York can now help point criminal justice in a more sensible and constructive direction — and show other states how to save money — by downsizing its prison system.
A partially justified(?) celebration of "Diversity on the federal bench"Carl Tobias has this new op-ed in the National Law Journal, which is headlined "Diversity on the federal bench: The Obama administration deserves credit for nominating large numbers and percentages of highly qualified, diverse candidates." Here is a snippet:
Obama has adopted measures that will increase ethnic and gender diversity, as manifested in his judicial nominations to date. Justice Sonia Sotomayor is the classic example. Moreover, his 10 appeals court nominees include three African-Americans, one Asian-American and four women, while his 10 district court nominees include four African-Americans, three Asian-Americans, one Latino and four women.
Two African-American circuit nominees, highly regarded sitting district judges Andre Davis and Joseph Greenaway, earned well-qualified American Bar Association ratings, the organization's highest ranking. The third, well-respected Rhode Island Superior Court Associate Justice O. Rogeriee Thompson, was nominated last week and has yet to receive an ABA ranking. The four Asian-American nominees would increase by 36% the number of Asian-American judges. They include Southern District of New York Judge Denny Chin, who would be the first Asian-American judge on the U.S. Court of Appeals for the 2d Circuit; California Superior Court Judge Jacqueline Nguyen, who would be the first Vietnamese-American district judge; and Magistrate Judge Edward Chen, who would be the first Asian-American member of the Northern District of California.
I share the sentiment that President Obama should be credited for impressive ethnic and gender diversity in his early judicial nominations. But, as this brief snippet highlights, the Obama nominees are remarkable for a profound lack of diversity concerning their pre-nomination positions: nearly all of Obama's federal judicial nominees have involved persons who are already judges.
As I have said in prior posts, I suspect that Obama's remarkable affinity for nominating persons who are already judges to the federal bench is mostly a reflections of his Administration's interest in playing matters relatively safe with early judicial nominees. Nevertheless, I hope before too long that the chief criteria being used for selecting Obama judicial nominees soon extends beyond the apparent requirement that the prosepctive nominee is already a judge.
Some related new and old posts:
- Why federal sentencing reformers must focus on the USSC and lower courts
- Judging, politics, sentencing and elections
How will Ohio's lethal injection review impact other state execution protocols?The question in the title of this post is prompted by this new piece in the Washington Post, which is headlined "Execution Methods Examined: Ohio's Review After Botched Injection May Have Wide Impact." The piece mainly reviews the basic facts surrounding Ohio's failed execution attempt last month and the subsequent delay of other scheduled Ohio executions. But the piece also speculates that what happens in Ohio could have ripples elsewhere:
[Ohio Governor Ted] Strickland's decision to delay two more executions and review the way Ohio has executed 32 prisoners since 1999 could influence the way condemned prisoners elsewhere are put to death, according to experts on the death penalty.
"Everything's on the table at this point," said Julie Walburn, spokeswoman for the Ohio corrections department, which has overseen two similar situations since 2006. In the other cases, technicians eventually found veins, and the prisoners were executed.
Walburn said the Strickland administration is all but certain to revise its protocols to deal with cases like Broom's. State officials are also analyzing the effectiveness of the existing three-drug combination and other ways to kill a person with a lethal injection. "We are taking a very studied approach. This is a complex issue, and we are certainly not going to rush our examination," Walburn said, explaining that Strickland is prepared to delay the scheduled Dec. 8 execution of Kenneth Biros if the new rules are not ready.
"Other states will be watching," said Richard Dieter, executive director of the Death Penalty Information Center, who reported that several states, including Maryland, are working on lethal injection protocols....
Ohio's "troubling difficulties" in executing Broom and two other inmates, as the 6th Circuit put it, have not led any other governors to delay executions. When Alabama executed Max Payne on Thursday, he became by Dieter's count the 40th person in the United States to die by lethal injection this year.
Though lots might be said about the Post story, my first reaction to Julie Walburn's comments is to suspect it may now be a realllllllllly loooong time before Ohio gets around to executing a condemned prison again. Indeed, I am now thinking there is a decent chance Ohio will not attempt another execution until deep into 2010 and maybe not even then.
Some new and old related posts on Ohio developments and other lethal injection issues:
- Details on the botched Ohio execution attempt, issue spotting, and seeking predictions
- Will (and when and how will) SCOTUS have to weigh in on Ohio's desire to try execution again?
- Federal hearing about constitutionality of Ohio's re-execution attempt pushed back months
- Split Sixth Circuit panel stays next scheduled Ohio execution
- NEWSFLASH: Ohio Governor puts all state executions on hold until at least Dec. 2009
- Alabama able to carry out another uneventful lethal injection execution
- Ohio considering new (and novel) method of lethal injection
- Can doctors block all US lethal injections (and indirectly abolish the death penalty)?
Interesting local coverage of "sexting" problemI just notices a pair of new articles in the Columbus Ledger-Enquirer reporting on the modern social problem of "sexting." The piece, available here and here, are headlined "Teens often don't grasp the consequences of sexting" and "Criminal charges from sexting can be heavy." Here is the sentencing part of the story from second article, which describes parts of applicable Georgia law:
Sexting is a crime. When those photographs involve a minor and are of a sexual nature, they can be considered child pornography and lead to criminal prosecution.
Anyone caught possessing, distributing or manufacturing such pictures — even if they themselves are under age — can be charged with a felony that, depending on the circumstances, could carry a prison term ranging from 12 months to 20 years in prison. Anyone convicted of these crimes, which include child molestation, possession/distribution of child pornography and enticing a minor will also be labeled as a sex offender.
“All of which are felonies,” said Sgt. Debra Bohannon with the Sex Crimes Unit of the Columbus Police Department. “That’s not even something these kids or their parents are thinking about. But they should.”
Sexual exploitation of a child, among the most common charges that Bohannon and the Sex Crimes Unit pursues in cases that might be defined as sexting, carries a penalty of no less than five and no more than 20 years in prison. “It depends on the totality of the crime,” Bohannon said. “It depends on the age of the sender, the age of the receiver, what was sent and how much was in their possession. There are a variety of circumstances that play into the exact charges that are filed.”
While specific numbers are difficult to calculate given the nature of sexting, Bohannon said the Sex Crimes Unit has been called in to investigate “numerous” cases involving what would be considered child pornography that’s been either captured or distributed by cell phones.
Her most recent case took place in mid-August and involved two 12-year-olds. No charges were filed. “A majority of the kids we see are in middle school,” Bohannon said. “We see some in high school, but most are sixth-, seventh- and eighth-grade kids. And I’d be willing to say that a high, high percentage of the actual cases are handled in-house, either by the schools or by their parents.
Some related "sexting" posts:
- The many fascinating legal and social issues swirling around "sexting"
- Federal district judge enjoins controversial state sexting prosecution
- Ohio ACLU writes to local lawmakers and prosecutors about sexting
- "Ohio judge sentences 2 teens for sexting"
- Some of the latest "sexting" news and notes
- Vermont legislature considering "sexting exception" to child porn prohibitions
- Pennsylvania town struggling with a "rash of sexting incidents"
Still more changes in Texas panel looking at potential wrongful executionThis new piece from CNN, headlined "Fourth member replaced on Texas panel probing execution," reports on yet more tumult surrounding the Texas case thought by many to be evidence of an innocent person wrongfully executed. Here is how this piece starts:
Texas Gov. Rick Perry has removed a fourth member of a state commission charged with investigating claims that an innocent man may have been executed, his office said.
The Texas governor has now replaced all of the four members that, under law, he is allowed to appoint to the commission. The remaining five members are appointed by the state's lieutenant governor and attorney general. Perry's critics say his actions are politically motivated, a charge he denies.
The investigation into claims that faulty evidence led Texas to execute an innocent man in 2004 was at a "crucial point" when the shakeup occurred, one of the replaced members said.
The commission was to hear from the author of a scathing report in the case of the executed man, Cameron Todd Willingham, when Perry announced on September 30 that he would replace three members. The session was postponed indefinitely because of the new appointments, and Perry's critics accused him of trying to quash the Willingham probe.
Recent related posts:
- Will new evidence of Texas executing an innocent man alter modern death penalty debates?
- How will death penalty proponents respond to "Trial by Fire"?
- Texas Governor Perry disrupts panel looking into Willingham capital case
New article on "Reconsidering Deference" in the appellate review of sentencesI just noticed here on SSRN that Professor Michael O'Hear has yet another important new piece concerning appellate review of sentences. This new piece is titled "Appellate Review of Sentences: Reconsidering Deference," and here is the abstract:
American appellate courts have long resisted calls that they play a more robust role in the sentencing process, insisting that they must defer to what they characterize as the superior sentencing competence of trial judges. This position is unfortunate insofar as rigorous appellate review might advance uniformity and other rule-of-law values that are threatened by broad trial-court discretion. This Article thus provides the first systematic critique of the appellate courts’ standard justifications for deferring to trial-court sentencing decisions. For instance, these justifications are shown to be based on premises that are inconsistent with empirical research on cognition and decision-making. Despite the shortcomings of the standard justifications, the Article suggests that there is a stronger argument for deference that is based on the trial judge’s background knowledge regarding the particular circumstances of the local community and courthouse. Even the potential benefits of localization, though, do not clearly outweigh the rule-of-law costs of appellate deference. Thus, the Article concludes with a proposal for a sliding-scale approach to deference that strengthens the appellate role, but also accommodates localization values in the cases in which they are most salient.
The reach of technocorrections in our modern society
I have often blogged about the inevitability of different forms of technocorrections becoming a more regular part of our daily lives, and a few of today's national and internation headlines reinforce my basic instincts on these fronts:
October 11, 2009
Sunday sentencing sport: "Which elected politician said that?"
After I complete this post, I am heading down to my basement cave for a Sunday sports orgy with baseball, football and golf all vying for my attention. Before calling it a day, I though I might provide a little sport for sentencing fans in the form of a contest to guess "Which elected politician said that?" Here are the notable quotes:
1. "America is the land of the second chance, and when the gates of the prison open, the path ahead should lead to a better life."
2. "[T]here are thousands of non-violent offenders in the system whose future we cannot ignore. Let’s focus more resources on rehabilitating those offenders so we can ultimately spend less money locking them up again."
3. "We should not be resigned to allowing generation after generation to return to prison because they don’t have the tools to break the cycle. I personally favor a number of these faith-based approaches. But if there are other approaches, let’s try them. This is an enormous problem, and since the ’70s, we have basically just said we’ll lock people up.”
4. "The system has a very strong tendency to change them for the worse. Everybody knows that, I think. Our current system is fundamentally immoral.”
5. "I believe that we ought to be doing drug treatment rather than incarceration."
For serious sentencing fans, the first quote should be pretty easy. And, as a hint for the others, I will add that the elected politicians who said these things are all members of the same political party. The answers (and other notable quotes) can be found in this document, which I discovered thanks to Scott at Grits for Breakfast.
Is there any good sentencing stuff in C-SPAN's week of SCOTUS programming?I have not had the time this week to watch any of C-SPAN's "Supreme Court Week" programming. As described by C-SPAN here, apparently I have missed a lot:
Beginning Sunday October 4 at 9pm and continuing through that entire week — each night at 9pm — C-SPAN will present groundbreaking and unique programs on the Supreme Court. Featuring our original documentary production "The Supreme Court: Home to America's Highest Court" as well as an unprecedented collection of original interviews with all 11 living current and former Supreme Court Justices, Supreme Court week will offer viewers a rare window into the Supreme Court and those that serve there.
Fortunately, it seems this SCOTUS programming is nearly all now available at this link, and so I am wondering if any segments are must-see TV for sentencing fans. I just watched a few interviews, but nothing sentencing-related jumped out. But maybe others have noticed stuff that merits a sentencing spotlight.
DOJ reviewing some DNA testing waivers in federal plea agreementsThis new article in today's Washington Post, which is headlined "Justice Dept. to Review Bush Policy on DNA Test Waivers," spotlights an interesting issues concerning the use of rights waivers in some federal plea agreements. Here are some of the basics:
Attorney General Eric H. Holder Jr. has ordered a review of a little-known Bush administration policy requiring some defendants to waive their right to DNA testing even though that right is guaranteed in a landmark federal law, officials said.
The practice of using DNA waivers began several years ago as a response to the Innocence Protection Act of 2004, which allowed federal inmates to seek post-conviction DNA tests to prove their innocence. More than 240 wrongly convicted people have been exonerated by such tests, including 17 on death row.
The waivers are filed only in guilty pleas and bar defendants from ever requesting DNA testing, even if new evidence emerges. Prosecutors who use them, including some of the nation's most prominent U.S. attorneys, say people who have admitted guilt should not be able to file frivolous petitions for testing. They say the wave of DNA exonerations has little impact in federal court because all those found to be innocent were state prisoners, and the waivers apply only to federal charges. DNA evidence is used far more frequently in state courts.
But DNA experts say that's about to change because more sophisticated testing will soon bring biological evidence into federal courtrooms for a wider variety of crimes. Defense lawyers who have worked on DNA appeals strongly oppose the waivers, saying that innocent people sometimes plead guilty -- mainly to get lighter sentences -- and that denying them the ability to prove their innocence violates a fundamental right. One quarter of the 243 people exonerated by DNA had falsely confessed to crimes they didn't commit, and 16 of them pleaded guilty....
Interviews and documents show that language allowing for DNA waivers was inserted into the law at the behest of Republican senators and that the Bush Justice Department lobbied against the measure even with the waiver provision. Soon after the law passed with bipartisan support, the department sent a secret memo to the nation's 94 U.S. attorney's offices urging them to use the waivers, several federal officials familiar with the memo said.
Holder, a former U.S. attorney in the District, has called for expanded DNA testing in federal courts. After inquiries by The Washington Post, his spokesman, Matthew Miller, said Holder "has ordered that the department review its DNA waiver policy."... Oregon prosecutor Joshua Marquis, who sits on the executive committee of the National District Attorneys Association, said he's never heard of DNA waivers in state court and that the organization opposes the concept. "I think it's important to always leave the door open for actual proof of innocence," he said.
In federal court, the waivers are part of the standard plea agreement filed by prosecutors in the District, Alexandria and Manhattan, which are among the nation's highest-profile U.S. attorney's offices. Waivers are used in some or all pleas by at least 16 other offices, including such large ones as Chicago and Los Angeles and such smaller ones as Arkansas and West Virginia. Prosecutors in Maryland rarely use the waivers. "It saves us a lot of spurious litigation down the pike," said G.F. Peterman III, acting U.S. attorney in the Middle District of Georgia. "All they have to do is say I'm not guilty, go to trial and they've waived nothing. It's their decision."
Defense attorneys disagree, saying prosecutors give defendants the choice of signing the waiver or not getting the benefits of a plea agreement, which usually include a lighter sentence. "It's a horrendous provision, and I can never get them to take it out," said Christopher Amolsch, a lawyer whose client recently waived DNA testing rights in a cigarette smuggling case in U.S. District Court in Alexandria. Other lawyers said they don't usually fight the waivers, considering it a losing battle....
At least 24 U.S. attorneys don't use the waivers. It could not be determined how many inmates have been affected by the policy, because the remaining 50 U.S. attorney's offices did not respond to inquiries or declined to comment. It is also unclear how many federal prisoners have filed petitions seeking post-conviction DNA testing since 2004. Justice Department officials said the number is small but have also said they expect more petitions over time.
Though this Postarticle is focused on waiver of the right to DNA testing, I am hopeful that the Justice Department is examining critically all the disparate and disturbing use of broad waivers in federal plea agreements. I am glad to see the Post focusing on one part of this issue, but I hope the inquiry into waivers of rights in plea deals extend beyond DNA concerns.
As this article highlights, though the Justice Department and federal prosecutors are often raising concerns about disparate sentencing practices, the reality of federal criminal practice is that plea bargaining practices and plea agreement terms are often wildly disparate from district to district. The different and disparate fast-track sentencing programs (discussed in the most recent FSR issue) are the most tangible example of prosecutor-produced disparity, but use of different types of waivers is also profound and pervasive, too.
The most pervasive and pernicious plea agreement waiver involves waivers of the right to appeal. Though statistics are hard to come by, I suspect that some (if not most or even all) federal districts include appeal waiver in some (if not most or even all) plea agreement. As I explained in long ago posts here and here right after Booker, I think a strong argument could and should be made that appeal waivers are void as against public policy as enshrined in the Sentencing Reform Act and Booker. But, to my knowledge, only a very few federal judges and courts refuse to endorse and uphold appeal waivers.
"Prison Time or Restitution?: Sentencing for fraud often a balancing act"The title of this post is the headline of this article from my local paper, which raises some classic hard questions in the sentencing of economic crimes. Here are snippets from an interesting and effective piece:
It's unlikely that Melanie Chen's victims will ever recoup the thousands of dollars they lost to her cancer hoax. A Delaware County Common Pleas judge sentenced Chen on Tuesday to eight years in prison for swindling her in-laws and other relatives and friends out of $792,191 after convincing them that her husband, Phylip, 38, had cancer.
Chen, 30, of Columbus, also was ordered to pay full restitution, but Assistant Prosecutor Bill Owen knows from experience that probably won't happen. The money is long gone....
Chen's victims have conflicting emotions, which isn't unusual in fraud cases, Owen said. Some are more concerned with recovering the stolen money than with punishment, while others seem satisfied that Chen is in prison. Phylip Chen also faces criminal charges and awaits a trial scheduled for Oct. 27. "It's just very difficult for a victim of an economic crime to ever feel any closure," Owen said.
Sentencing criminals convicted of fraud is a balancing act. Judges often impose a prison term for financial crimes, especially if the case involves multiple victims, said David Diroll, executive director of the Ohio Criminal Sentencing Commission. "The dilemma the courts have is, on one hand you have many people bothered by this and outraged that they've been scammed," Diroll said. "You weigh that against whether sending someone to prison gives them any meaningful shot at restitution."
Before deciding on a sentence, judges consider the loss to victims and the criminal's ability to pay what they owe, Diroll said. They also consider the person's background, education and employment history. That's why punishments vary from court to court and judge to judge, even for similar crimes. Sometimes, judges suspend prison sentences or grant early release from prison so that restitution can be collected sooner.
A state tax agent fired in February for theft recently was ordered to repay the $67,657 she stole from taxpayers over 14 months. Franklin County Common Pleas Judge Laurel A. Beatty suspended a five-year prison term for Lisa M. Finnell, 41, and ordered her to complete five years of probation instead. "I told her I preferred her making payments to the taxpayers of Ohio than sitting in a prison cell," Beatty said after Finnell's sentencing on Sept. 30.
But in many cases, the defendant doesn't have the means to pay restitution, particularly when it's a very large amount, said Mark Schweikert, executive director of the Ohio Judicial Conference and a retired judge. "Each case is unique and has its own set of facts, and each offender has their own set of circumstances," Schweikert said. "That's why we have judges and not computers making those decisions."
Because prison time imposes lots of tangible costs while providing few tangible benefits to either victims or society, I am always inclined to favor significant economic sanctions for economic crimes. Specifically, I think both restitution and fines paid to a general victim compensation fund should be regular part of sentencing for all economic crimes.
My broader hope is that, if and when economic crime victims start seeing efforts by prosecutors and judges to make them whole, these victims will start actively advocating punishments that enhance the chance of successful offender reentry (which should increase the ability of an offender to make restiution) rather than just urging longer prison terms (which generally decreases an offenders economic productivity).