January 2, 2010
Latest story of sports stars and guns creates great con law issue spotter
Regular readers know that I am giddy when I can "work" while reading the sports pages or listening to sports talk radio. Thus, whether the issues involve famous athletes getting seemingly lenient sentences for drunk driving (see Donte Stallworth) or seemingly harsh sentences for the poor exercise of Second Amendment rights (see Plaxico Burress), the intersection of sports and crime always gets me going. And the latest sports story making the police blotter has me thinking that constitutional law professors should be excited about the latest news coming from DC. This New York Times piece, headlined "Wizards Gun Inquiry Focuses on Dispute," provides some key details:
The National Basketball Association and law enforcement officials are investigating the circumstances in which Washington Wizards guard Gilbert Arenas carried unloaded firearms into the team’s locker room, and whether he presented any guns during an argument with his teammate Javaris Crittenton....
Arenas acknowledged storing three firearms in his locker and said he took them to the arena because he did not want them in his home after the birth of his third child. When asked if he had showed the weapons to anyone, Arenas said: “Yes, I showed them to someone. I showed them to team security when I handed them to them and said give them to the police. Yes, I took them out of this locker room. I had to take them out to get them out of here to give to security. You see they didn’t take the whole locker out of here.”
The District of Columbia police and the United States Attorney’s Office opened a joint investigation into the incident. Their inquiry centers on whether Arenas produced any of the guns in a dispute with Crittenton before a practice at the Verizon Center on Dec. 21, according to Yahoo Sports. The New York Post reported that both players drew weapons, which Arenas denies. “I wake up this morning and seen I was the new John Wayne.” Arenas wrote on his Twitter account, adding. “Media is too funny.”
The District of Columbia has a zero-tolerance weapons possession law similar to that of New York City, and it is a violation of the N.B.A.’s collective-bargaining agreement to carry weapons into an arena or facility owned by the league. Charges have not been filed against Arenas, but if they are, he may face steep disciplinary action from the league....
Arenas, once the author of a popular blog, originally vowed not to interact on Twitter until his account reached one million followers. Far short of that mark, his feed featured a flurry of activity in a 24-hour span that began on New Year’s Eve before news broke of the argument with Crittenton. “i understand this is serious...but if u ever met me you know i dont do serious things im a goof ball this story today dont sound goofy to me,” Arenas wrote....
Arenas signed a six-year, $111 million contract in 2008. Before this season he played in only 15 games the last two years while battling injuries.
He pleaded no contest to misdemeanor weapons and vehicle charges in 2003 after being charged with carrying a .40-caliber handgun and driving without a license during a traffic stop in California. Shortly after, Arenas left the Golden State Warriors and signed a six-year, $64 million contract with the Wizards. The N.B.A. suspended Arenas for the first game of the 2004 season because of the charge. Arenas said he had registered the weapon in Arizona, but not in California.
Based on just this simple account of the facts, I can spot dozens of constitutional issues now surrounding this incident. Obviously, Second Amendment issues are in play since Heller declared a constitutional right to possess guns (at least in the home) for self defense. But how about the potential First Amendment issues involved in Arenas blogging about this on-going criminal investigation? Or how about Fourth, Fifth and Sixth Amendment issues raised by whether the police can now search the Wizards' locker room and Arenas's home and by how police can question Arenas and his Wizard teammates? And let's not forget all the structural constitutional questions in light of the overlapping local, state, and federal police-power interests in the District of Columbia. Of course, the NBA is a private actor subject to few constitutional constraints on how it responds to this incident; but I think contract and labor law could become constitutional law if the NBA were to, say, forever ban Arenas from the league.
Of course, for sentencing fans, one needs to assume a crime before getting too invested in thinking about all the interesting legal questions this case raises. Still, it is already fun to contemplate whether what Arenas says on Twitter could provide a valid basis for a sentence enhancement in some future sentencing. Also, if Arenas gets quicky and severely "punished" by the NBA, how should that impact formal prosecution and sentencing decisions? And what about the fact that Arenas appears to be a repeat offender (as well as a responsible father)?
I am sure there are even more great legal issues worthy of discussion as thoughts slowly turn from football to basketball during this time of the sports year. Readers are, of course, encouraged to join in this game of fast-break criminal justice issue spotting.
"Why are violent crime rates falling?"The title of this post is the question that, in my opinion, should be the top research and policy concern for all academics and lawmakers in 2010. It also is the head of this terrific new Washington Post editorial, which I must quote at great length because it is so astute:
As you have no doubt heard, the first 10 years of the 21st century were dreadful -- a lost decade of terrorism, war and economic stagnation. There is some truth to that portrayal. But in one significant respect, the awful Aughties were practically a golden age. We refer to the continued progress the United States is making against homicide and other violent crime.
According to some conventional wisdom, economic trouble breeds lawlessness. Yet in the first half of 2009, as unemployment skyrocketed, reported murders, forcible rapes, robberies and aggravated assaults decreased by 4.4 percent compared with the first half of 2008, according to the FBI. The decline in homicide was especially striking: down 29.8 percent in Los Angeles, 14 percent in Atlanta, 10 percent in Boston. With 461 murders through Dec. 27, New York was on track for the lowest number since comprehensive record-keeping began in 1963....
The national decrease in murder began about two decades ago. In 1991, the national homicide rate hit 9.8 per 100,000 inhabitants, prompting forecasts of permanently rising street violence -- then fell to 5.7 in 1999. Many wondered whether this "Great Crime Decline" could be sustained for another 10 years. The answer would appear to be yes: By 2008, the murder rate had drifted down to 5.4 per 100,000, the lowest level since 1965. And given the preliminary figures, the rate for 2009 should be lower still. Indeed, if present trends continue, America will experience a degree of public safety not known since the 1950s.
Obviously, one murder is one murder too many. U.S. rates of violent crime remain above those of other industrial democracies. And certain places, including Baltimore, where murder rose 9.5 percent in the first half of 2009, have progressed less dramatically than others. Still, this substantial and sustained reduction in murder, once thought impossible, ranks as a major national achievement.
If only we knew exactly why and how it has occurred. An accident of demography? The passing of the crack cocaine epidemic? We're inclined to credit policies that put more brave and dedicated cops on the street, with better technology and smarter tactics. Still New York City continued to rack up lower homicide rates in the past decade even as its police force shrank by 6,000. New York officials say that city's tougher gun laws have helped; yet Houston also recorded a drop in homicide in the first half of 2009 despite loose gun laws.
Tougher sentencing probably took some career criminals off the streets -- though there's little evidence that the death penalty deters murder. No doubt new lifesaving medical techniques turned potential homicides into lesser offenses -- yet aggravated assault is down, too.
Government at all levels spends much time and money figuring out what's going wrong in our society and how to fix it. Perhaps we need a bigger effort to determine what's been going right in the fight against violent crime -- and to spread that knowledge to every jurisdiction in the country.
This editorial strike me as so effective and important because it provides the proper context and critical questions for considering crime and punishment policies as we head into a new decade. Despite new terrorism concerns and the extreme media attention that surrounds the most awful crimes (especially when they involve young and pretty victims), America continues to become a safer and safer place to live. We should start this new decade with a healthy appreciation and thanks for the reality that, from a criminal justice perspective, the recent past has been filled with more success than failure and the immediate future looks bright.
We also must not become complacent in light of our (surprising?) modern success. In particular, we all should be working extra hard trying to figure out exactly what has been working in this arena. There will surely be no obvious or easy answers : because social realities and human behavior are often so dynamic and unpredictable, any claims of a simple solution are likely to be simply wrong. But, aided by thoughtful study and unbiased research, policy-makers can and should be able to make educated guesses as to what laws and polices are more likely (and less likely) to continue the positive trends of the last 20 years. And, critically, in an era of economic struggles and tight budgets, effectiveness needs to be assessed in light of both general crime reduction and cost-effectiveness for limited taxpayer dollars.
This editorial nicely noting that "new lifesaving medical techniques" might play a part in these stories, but I fear that broader policy debates concerning education and health-care reform rarely appreciate their possible connection to crime and punishment. All criminal offending statistics reveal that crime is disproportionately committed by those with the least educational achievement and by those who suffer from mental illnesses and substance abuse. General improvements in the provision of education and health care over the last two decades may be an important (and largely overlooked) factor in reduced crime rates, and perhaps continued improvements in these areas of social policy could pay criminal justice dividends in the years ahead.
"Man opts for jail over New Year with relatives"
The title of this post is the headline of this amusing story coming out of Italy:
A Sicilian man stole sweets and a packet of chewing gum so he could get arrested and spend New Year's Eve in a jail cell rather than be with his wife and relatives, Italian media reported on Friday.
The 35-year old Sicilian first showed up at a police station on Thursday asking to be arrested because he preferred spending the night in prison rather than with his family, but was rebuffed because he had not committed a crime, the Agi news agency said.
The man immediately went to a tobacco shop next door, where he threatened the owner with a box cutter as he grabbed a few sweets and a packet of gum. He then waited until police arrived to arrest him for robbery, the news agency said.
It seems that we now have nearly conclusive proof that in-laws cause crime.
Pennsylvania reconsidering toughest sentencing laws due to prison overcrowdingThis article from the Pittsburgh Post-Gazette, which is headlined "Pa. sentencing guidelines eyed: Throw-away-the-key policy has state prisons bursting at the seams," details how Pennsylvania is being forced to rethink certain sentencing laws and policies. Here is how the effective piece starts:
Faced with a serious overpopulation of its prisons and now the need to ship inmates to other states, state legislators may consider easing some harsh sentencing guidelines so that nonviolent offenders aren't automatically sent to prison for lengthy terms.
State Rep. Tom Caltagirone, D-Reading, chairman of the House Judiciary Committee, said judges should be given more latitude in deciding on sentences for minor offenses -- leeway they don't have now due to mandatory sentencing laws approved 10 or 20 years ago in the heyday of "lock 'em up, throw away the key" thinking.
"We are throwing some prisoners, including many from the inner city, into the pit for small offenses, and they don't get help for their problems," he said at a recent Judiciary Committee meeting, where one interested observer was outgoing state Rep. Don Walko, D-North Side. He's leaving the Legislature for his new job as a Common Pleas judge in Allegheny County.
One new tool to help reduce prison overcrowding, said state Corrections Department Deputy Secretary William Sprenkle, would be to allow any prisoner with eight months left on his or her sentence to serve the time at a pre-release center or halfway house. "Short-time offenders are clogging up our prison system," he said.
There also are rules involving drug offenses, such as a two-year mandatory minimum sentence for possessing as little as two grams of cocaine within 2,500 feet of a school, Mr. Caltagirone said. Perhaps that could be adjusted, he said, such as by reducing the distance from a school or raising the amount of the drug a person possesses before a prison term is mandated. Persons convicted of having small amounts of cocaine and who are not seen as a violent threat to the community could perhaps serve their sentence in a halfway house instead of adding to the prison population.
Some lawmakers fear that worsening overcrowding could lead to prison riots or federal lawsuits against the state. But obviously there are risks with expanding parole, both political and public safety-related. No legislator wants to be seen as "soft on crime" if he or she votes to let more convicted criminals get out on parole, even if they are still monitored via ankle bracelets and parole officers.
And no matter how careful state officials are in classifying a parolee as "nonviolent," it's almost impossible to be right 100 percent of the time, Mr. Caltagirone admitted. The population of the state's 27 prisons is now more than 51,000 and growing, compared to capacity of 43,000, and one reason for that was a horrible event that happened in Philadelphia two years ago.
A prisoner with two years left on his sentence was paroled after 10 years. A few weeks later he killed a Philadelphia policeman, outraging the police and public. Gov. Ed Rendell, a former Philadelphia mayor, imposed a moratorium on all paroles for a few months, causing the prison population to rise by 3,000.
Mr. Sprenkle said Pennsylvania will soon begin shipping 2,000 inmates to prisons in two other states, Michigan and Virginia. Half of them will leave in February and the other 1,000 will be moved in March and April. Michigan and Virginia will supply the transportation.
"Overview of Federal Criminal Cases, Fiscal Year 2008"
The title of this post is the title of this new publication from the US Sentencing Commission. Here is how the USSC describes the document:
This publication provides a broad overview of federal sentencing data for fiscal year 2008. Readers will find this publication to be a brief, easy-to-use reference on the types of criminal cases handled by the federal courts and the punishments imposed on the offenders convicted in those cases.
Though this new document set out only basic information about basic federal sentencing realities, it still makes for an interesting read.
January 1, 2010
Interesting criminal caseload data in year-end report by the Chief JusticeA true sign of being a law geek is being excited to to spend part of the first morning of the new year checking out the traditional "Year-End Report on the Federal Judiciary" from the Chief Justice of the United States. This year's version, which can be accessed here, is impressively minimalist in its prose, but it includes these notable criminal justice caseload statistics:
Criminal case filings (including transfers) rose 8% to 76,655, and the number of defendants climbed 6% to 97,982, surpassing the previous record for the number of defendants, 92,714, set in 2003. The number of criminal cases reached its highest level since 1932, the year before ratification of the Twenty-first Amendment, which repealed prohibition. In that year, 92,174 criminal cases were filed.
Increases occurred in cases related to immigration, fraud, marijuana trafficking, and sex offenses. Filings in other offense categories with significant numbers — non-marijuana drugs and firearms-and-explosives — declined. Immigration filings climbed to record levels, as cases jumped 21% to 25,804, and the number of defendants rose 19% to 26,961. This growth resulted mostly from filings addressing either improper reentry by aliens or fraud or misuse of a visa or entry permit. The charge of improper reentry by an alien accounted for 80% of all immigration cases and 77% of all immigration defendants. The vast majority of immigration cases — 88% — were filed in the five southwestern border districts....
On September 30, 2009, the number of persons under post-conviction supervision was 124,183, an increase of nearly 3% over the total one year earlier. Persons serving terms of supervised release after leaving correctional institutions rose more than 4% this year and accounted for 80% of all persons under supervision. Cases opened in the pretrial services system, including pretrial diversion cases, grew by nearly 6% to 105,294.
Another federal judge assails federal prosecutors when dismissing Blackwater prosecutionAs detailed in this Washington Post article, another federal judge has concluded a criminal case by ruling that prosecutorial mistakes (and misconduct?) precludes continued criminal prosecution. Here are the basic details:
A federal judge dismissed charges against five Blackwater Worldwide security guards accused of killing 14 Iraqi civilians in a controversial shooting in a busy Baghdad square two years ago in a ruling that sharply criticized the tactics of Justice Department prosecutors handling the case.
The judge, Ricardo M. Urbina of the District's federal court, found that prosecutors and agents had improperly used statements that the guards provided to the State Department in the hours and days after the shooting. The statements had been given with the understanding that they would not be used against the guards in court, the judge found, and federal prosecutors improperly used them to help guide their investigation. Urbina said other Justice Department lawyers had warned the prosecutors to tread carefully around the incriminating statements.
"In their zeal to bring charges," Urbina wrote in a 90-page opinion, "prosecutors and investigators aggressively sought out statements in the immediate aftermath of the shooting and in the subsequent investigation. In so doing, the government's trial team repeatedly disregarded the warnings of experienced, senior prosecutors, assigned to the case specifically to advise the trial team" on such matters.
In this post at Volokh, Paul Cassell complements the "thoroughness of Judge Urbina’s opinion" (which he makes available at this link). I suspect that the folks who usually support aggressive prosecutors and assail active judges may be unusually pleased by Judge Urbina's activist decision to dismiss this prosecution because prosecutors were too aggressive.
More broadly, this ruling by Judge Urbina on New Year's Eve provides a fitting close to a 2009 that was most remarkable for how many times and in how many different settings that federal judges felt they must speak out forcefully concerning the misbehavior of federal prosecutors. Though I have not kept a running list of all the cases in which federal prosecutors have been assailed by federal judges for their misbehavior (has anyone?), what used to be a truly exceptional event seemed to have become a regular occurrence in 2009.
December 31, 2009
The Heinz sentencing year: 2009 all about anticipation...
For my last post of 2009, I will recap the year in sentencing by showing my age and referencing the classic Heinz ketchup ads with the Carly Simon song "Anticipation." Specifically, my basic take on 2009 as a year in sentencing is that nothing all that dramatic, dynamic or consequential happened, but a lot of potentially dramatic, dynamic or consequential events have been teed up for 2010.
For example, the Supreme Court has granted cert and/or heard argument on an array of very significant sentencing cases on issues ranging from the constitutionality of juve LWOP to the reach and application of Blakely and Booker, ranging from the effect of defense lawyer’s wrong advice on the collateral consequences of a guilty plea to various challenges to various new federal sex offender laws. But there really was not a major landmark SCOTUS sentencing ruling in 2009, so we all await the fireworks from the Justices in 2010.
Similarly, Congress was full of talk of sentencing reform. Senator Jim Webb rolled out a bill for creating a special commission to study mass incarceration and related sentencing issues in a comprehensive fashion, and other federal bills addressed in more limited ways a various important crime and punishment topics. And yet, none of these bills seemed to get particularly close to passage despite a political environment that would seem to present a special opportunity for legislative reforms. Still, the stage seems set for some movement on some legislative fronts, perhaps starting with the crack/powder disparity, in 2010.
Likewise, both the US Sentencing Commission and the US Department of Justice were engaged in a long-term review and reassessment of modern federal sentencing realities. Neither institutional player rolled out any major reform proposal in 2009, but it seems possible (and perhaps likely) that both will move forward in some new (and perhaps bold) new directions in 2010.
In the arena of the death penalty, the biggest 2009 development might have been the slight uptick in the number of execution and Ohio's successful adoption of a new one-drug lethal injection protocol. But it won't be until 2010 that we get to see if Ohio's path-breaking will lead a march by other states on a new execution path.
Regular readers may recall my series of posts at the start of 2009 wondering what might the year have in store for: executive clemency and the federal judiciary and its criminal caseload and the death penalty in the US and punishment theory and incarceration rates and Second Amendment jurisprudence and sex offender law and policy and drug sentencing law and policy and the US Sentencing Commission. As suggested above, I think the answer has been "not much." But I think a whole lot may be in store for 2010. And, assuming health and happiness in the year ahead, I hope and expect to cover all the action in this space.
Happy 2010 to everyone!
"Judges Consider New Factor at Sentencing: Military Service"The title of this post is the headline of this new article in today's Wall Street Journal. Here are excerpts from the effective piece:
A small but growing number of judges say U.S. military veterans should be treated differently from nonveterans when they are sentenced for crimes.
As more soldiers return home from combat overseas and end up in the criminal-justice system, a number of state and federal judges are deciding to show former soldiers leniency in light of their service. Some veterans are receiving probation coupled with psychological treatment, generally for nonviolent crimes that normally would land them in prison.
That is raising concern among some legal experts, who say singling out veterans for special treatment indulges criminal behavior and risks establishing a two-tier system of justice.
Many veterans returning from war zones develop behavioral and psychological problems, which in some cases leads to alcohol and drug abuse -- and crimes. "We dump all kinds of money to get soldiers over there and train them to kill, but we don't do anything to reintegrate them into our society," says John L. Kane, a federal judge in Denver. Earlier this month, Mr. Kane sentenced an Iraq war veteran convicted of bribery to probation instead of prison.
Most U.S. courts don't have rules on giving veterans special consideration.... But in North Carolina, if a defendant was honorably discharged from the military, judges must use that fact as a mitigating factor at sentencing. And in several states, including Tennessee and Louisiana, courts have ruled that judges are allowed to use prior military service to lessen a sentence.
There are no special courts for veterans in the federal court system.... But momentum for special treatment is growing. Since last year, about 16 counties and cities -- from California's Orange County, to three cities in western New York, have started veterans courts, according to the National Association of Drug Court Professionals. Three counties in and around New York City launched similar programs in July, and state legislatures have approved the formation of such courts in places such as Harris County in Texas and the state of Nevada.
The goal of the courts, which serve veterans of any era, is to keep defendants out of prison. Veterans are put into treatment programs for war-related illnesses, among other problems, that aren't available in the prison system. Their probation includes rigorous drug testing. After veterans complete treatment, some prosecutors' offices drop the criminal charges as long as the veterans didn't have a prior felony conviction....
Some legal experts worry the movement could result in special consideration for all veterans, regardless of whether their criminal conduct was influenced by their military service. "What we think goes over the line is the creation of two separate systems based solely on somebody's status," says Allen Lichtenstein, the general counsel for the American Civil Liberties Union in Nevada. "Police are under particular stress -- should there be a court for them?"...
Taking military service into account at sentencing isn't a new tradition. In the Civil War era, members of the military were routinely shown leniency by judges, notes Carissa Hessick, a law professor at Arizona State University. During the World War II and Vietnam eras, certain judges allowed criminal charges to be dropped if defendants enlisted in the armed forces. That practice is no longer allowed.
Sympathy for new veterans aided John Brownfield of Cañon City, Colo. The former U.S. Air Force firefighter pleaded guilty to accepting a bribe as a public official for illegally selling tobacco to federal prison inmates while working as a correctional officer in 2007, two years after he returned from tours in Iraq and Afghanistan.
The federal prosecutor and Mr. Brownfield's lawyer agreed to recommend to the judge that he serve a year in prison. But the judge, Mr. Kane of Denver, instead ordered a psychiatric evaluation and earlier this month sentenced Mr. Brownfield to five years of probation.
In the Brownfield case, Judge Kane wrote a lengthy opinion explain his sentencing decision. The Brownfield opinion can be accessed at this link, and it starts this way:
I have written this sentencing memorandum, which is more extensive than most such findings and conclusions, because this case involves issues the Sentencing Guidelines do not address regarding the criminal justice system’s treatment of returning veterans who have served in Afghanistan and Iraq. As I conclude that the Sentencing Guidelines’ advice is not persuasive in the circumstances of this case, I will make specific findings necessary to achieve the purposes of 18 U.S.C. § 3553 (2006). This memorandum opinion will be published and copies provided to the United States Sentencing Commission pursuant to the implicit suggestion in Rita v. United States, 551 U.S. 338, 357-58 (2007).
Some recent related posts:
- "Judge suggests more sentencing options for war veterans"
- Can downloading of child porn be blamed on post-traumatic stress disorder?
- Prior military service as a sentencing mitigator gets a big boost from SCOTUS
- Should prior military service reduce a sentence?
Federal district judge enjoins part of new Nebraska sex offender lawAs detailed in this local article, Sentencing Hall of Famer Judge Richard Kopf has issued a notable preliminary ruling concerning Nebraska's new sex offender law. Here are the basics:
The full ruling by Judge Kopf can be downlaoded below, and here is how it gets starts:
A federal judge has blocked portions of Nebraska's new sex offender registry law, but is allowing the bulk of it to take effect, as scheduled, Friday. In a ruling issued Wednesday, Judge Richard Kopf said lawmakers have mostly done what Congress wanted in revising the law.
Kopf is restricting enforcement of a provision that prohibits sex offenders from using social networking sites used by children. Affected as well is a requirement that sex offenders agree to searches of their computers. Convicted sex offenders who've completed their sentences and aren't on parole, probation or court-ordered supervision won't be subject to those two provisions.
Plaintiffs attack amendments to Nebraska’s Sex Offender Registration Act that become effective January 1, 2010. With exceptions noted below, I decide that a preliminary injunction is unwarranted. By and large, Nebraska has only done what Congress (and the Attorney General of the United States pursuant to a delegation from Congress) permitted or required.
The exceptions: In the interim, Nebraska will not be allowed to enforce the following statutes against persons who have been convicted of sex offenses but who have completed their criminal sentences and who are not on probation, parole, or court-ordered supervision, to wit:
(1) Neb. Rev. Stat. § 29-4006(2) (West, Operative January 1, 2010) (requiring consent to search and installation of monitoring hardware and software) and
(2) Neb. Rev. Stat. § 28-322.05 (West, Operative January 1, 2010) (making it a crime to use Internet social networking sites accessible by minors by a person required to register under the Sex Offender Registration Act).
UBS whistleblower complaining that he is only person headed to prisonReuters has this interesting new article previewing what sounds like an interesting upcoming segment of 60 Minutes. The piece is headlined "UBS whistleblower asks why he is going to prison," and here are excerpts:
The key informant in the U.S. tax fraud case against Swiss bank UBS AG says he does not deserve the federal prison term he is due to start serving next month, according to an interview to be broadcast on Sunday.
Bradley Birkenfeld, a 44-year-old U.S. citizen, has been hailed by whistleblower advocates and U.S. prosecutors alike as pivotal to the case against UBS, his former employer. The bank was targeted in a wide probe by U.S. authorities for helping U.S. tax cheats to hide assets in UBS accounts.
Speaking in an interview to be broadcast on CBS television's "60 Minutes" on Sunday, his first since he began providing insider information to U.S. prosecutors in the summer of 2007, Birkenfeld seems both angered and stunned by the fact that he is due to enter prison on January 8 for a 40-month term.
Birkenfeld was handed his sentence by a Florida district court judge in August, two days after U.S. and Swiss authorities signed a pact in which Switzerland agreed to reveal the names of about 4,450 wealthy American clients of UBS to U.S. tax investigators.
No other UBS bankers have been jailed in connection with the massive tax fraud case. Birkenfeld's former boss, a Swiss citizen and an alleged mastermind of the conspiracy, was detained in the United States in 2008 and held for four months on a material witness warrant before he was quietly allowed to leave the country. "I gave them the biggest tax fraud case in the world," Birkenfeld says in the interview, portions of which were released by CBS on Wednesday. "I exposed 19,000 international criminals and I'm going to jail for that?" he asks.
Birkenfeld pleaded guilty to a single fraud conspiracy count in June 2008, when he acknowledged helping his largest U.S. client hide assets from the Internal Revenue Service. In a claim disputed by Birkenfeld's lawyers in a December 7 letter to U.S. Attorney General Eric Holder, Justice Department officials say the jail time was justified because he was not initially forthcoming about the tax fraud committed by his billionaire U.S. client Igor Olenicoff.
In the "60 Minutes" interview, Birkenfeld, who says he was sometimes asked to "cater" to his U.S. clients by shopping for things like cars, chalets or expensive Swiss watches on their behalf, was reminded by journalist Steve Kroft that he was an enabler for people breaking the law. "And I am the only one going to prison. Out of 19,000 accounts and no Swiss bankers," Birkenfeld responds.
December 30, 2009
"Nothing Mellow About Dissent in Medical Pot Case"
The title of this post is the headline of this notable article from law.com, which reports on this interesting state appellate ruling from California dealing with an interesting issue about conditions of probation. Here are the details:
In an unusually contentious ruling Monday, California appellate court Judges Paul Haerle and J. Anthony Kline got in each other's faces about whether a judge can order a criminal defendant to stop using medicinal marijuana while on probation when the underlying crime has nothing to do with pot use. Kline says you can't. Haerle says you can, and -- unfortunately for Kline -- Haerle was backed in the 2-1 ruling by Justice James Richman.
The opinion focused on Daryl Moret Jr., who pleaded no contest to possession of a concealed firearm on the condition he abstain from using marijuana, which he claimed a doctor had recommended for chronic migraine headaches.
Solano County Superior Court Judge Peter Foor insisted on the condition because he had doubts that Moret needed pot for medicinal reasons and felt the substance could only lead the 19-year-old -- who had also embezzled $2,000 from a former employer and said he found the stolen gun in some bushes -- to further crimes. Moret's other choice? Jail.
"After balancing all these considerations, the trial court determined that it would help in 'basically straightening things out' and 'being a productive member of the community' that he abstain from using marijuana while on probation," Haerle wrote. "Thus, the trial court clearly and properly exercised its discretion."
An irked Kline responded by saying the majority opinion "flies in the face of the law," "subordinates the will of the people" and is "legally untenable."
"This court's [ruling]," he wrote, "permits imposition of conditions of probation that are unrelated to the crime of which the defendant was convicted, forbids conduct that is not criminal and requires conduct that has no relationship to the defendant's future criminality. No modern California court has ever done such a thing, which is precedent shattering."
Second Circuit finds prosecutor's sentencing advocacy does not justify a plea withdrawalThe Second Circuit today has an interesing little discussion of pleas and sentencing advocacy in US v. MacPherson, No. 08-1829 (2d Cir. Dec. 30, 2009) (available here). Here is how the ruling starts:
This criminal appeal challenges a sentence for a narcotics violation on the ground that the Government violated the plea agreement by recommending a sentence higher than the range estimated to be applicable at the time of the plea. The appeal also challenges the reasonableness of the sentence, which included 262 months’ imprisonment. Carlos MacPherson appeals from the April 15, 2008, judgment of the District Court for the Eastern District of New York (Dora L. Irizarry, District Judge). Applying plain error review to the challenge to the plea agreement, see Puckett v. United States, 129 S. Ct. 1423, 1428-33 (2009), we conclude that, if any error occurred with respect to the plea agreement, it was not plain error, and that the sentence survives review for reasonableness. We therefore affirm.
Sixth Circuit rejects Second Amendment challenge to federal criminal prohibition of possessing machine gunsThe Sixth Circuit issued a little panel opinion today in Hamblen v. United States, No. 09-5025 (6th Cir. Dec. 30, 2009) (available here), in which the panel summarily rejects a defendant's Second Amendment challenge to his machine gun possession convictions. Here is how the brief opinion starts:
Petitioner Richard Hamblen appeals the district court’s denial of his 28 U.S.C. § 2255 motion to vacate, claiming that his convictions for possession of machine guns, in violation of 18 U.S.C. § 922(o), and possession of unregistered firearms, in violation of 26 U.S.C. § 5861(d), are unconstitutional. Because the Second Amendment does not confer an unrestricted individual right to keep and bear machine guns, we affirm the district court’s judgment and deny Hamblen’s petition for relief.
This case seems notable not only because it is one of the few post-Heller rulings I have seen dealing with machine guns, but also because the defendant appears to have personally manufactured his machine guns in order to be able to better serve as a member of the Tennessee State Guard (which sounds like a modern version of a "well regulated militia"). But these facts are deemed inconsequential by the Sixth Circuit panel:
We note, as a preliminary matter, that Hamblen’s possession of nine unregistered machine guns was not only outside the scope of his duties as a member of the State Guard, but also directly violated State Guard policy. Therefore, this case does not present a novel issue of law regarding the Second Amendment’s prefatory clause.
December 29, 2009
Might pot prohibition come to an end in the next decade?This postby Jonathan Adler at Volokh, which is headlined "A Marijuana Tipping Point?", prompts the question in the title of this post. That post notes this recent AP article discussing increased state-level efforts to decriminalize marijuana possession and use. Here is a snippet from the AP piece:
Washington is one of four states where measures to legalize and regulate marijuana have been introduced, and about two dozen other states are considering bills ranging from medical marijuana to decriminalizing possession of small amounts of the herb.
"In terms of state legislatures, this is far and away the most active year that we've ever seen," said Ethan Nadelmann, executive director of the New York-based Drug Policy Alliance, which supports reforming marijuana laws.
Nadelmann said that while legalization efforts are not likely to get much traction in state capitals anytime soon, the fact that there is such an increase of activity "is elevating the level of public discourse on this issue and legitimizing it."...
Opponents of relaxing marijuana laws aren't happy with any conversation on the topic, other than keeping the drug illegal. "There's no upside to it in any manner other than for those people who want to smoke pot," said Travis Kuykendall, head of the West Texas High Intensity Drug-Trafficking Area office in El Paso, Texas. "There's nothing for society in it, there's nothing good for the country in it, there's nothing for the good of the economy in it."
Legalization bills were introduced in California and Massachusetts earlier this year, and this month, New Hampshire and Washington state prefiled bills in advance of their legislative sessions that begin in January. Marijuana is illegal under federal law, but guidelines have been loosened on federal prosecution of medical marijuana under the Obama administration.
Even so, marijuana reform legislation remains a tough sell in some places. In the South, for example, only Mississippi and North Carolina have decriminalization laws on the books. "It's a social and cultural thing," said Bruce Mirken, spokesman for the Marijuana Policy Project, a Washington, D.C.-based marijuana advocacy group.
Responding to this piece, Adler makes a fine point about two factors that should make those who favor legalized marijuana hopeful about the long-term prospects of the demise of pot prohibition:
First, the polling data I’ve seen suggests younger voters are much less supportive of marijuana prohibition than older voters. Insofar as this represents a generational difference, this would suggest that opposition to marijuana prohibition would rise over time. Second, as the story notes, many states are in dire need of new revenue sources. This could make the legalization, and taxation, of marijuana more attractive to politicians.
So, dear readers, I encourage you all to look into your crystal balls and make a prediction about whether come 2019 we will be talking about the the "Teens" as a decade in which high times became legal.
Some recent related posts:
- "Marijuana Nation: The New War Over Weed"
- NPR coverage of medical marijuana in California
- Republican governor signals openness to legalizing marijuana
- "America Should Decriminalize Drugs":
- Talk of drug courts, but not major policy changes, in drug war from Obama team
- Thoughtful academic thoughts on ending marijuana prohibitions
- "Time For Marijuana Legalization?"
- Terrific commentary and assessment of the war on drugs
- Renewing a lawyerly pitch for ending drug prohibition
- More calls for an end to the drug war and legalization of marijuana
- New poll has majority saying alcohol is more dangerous than marijuana
- "U.S. Support for Legalizing Marijuana Reaches New High"
Seventh Circuit requires "some minimal explanation" for sentencing modification ruling
The Seventh Circuit has issued a notable little opinion today in US v. Marion, No. 09-2525 (7th Cir. Dec. 29, 2009) (available here), concerning a district court's obligations when ruling on a federal defendant's motion for a sentence reduction under 3852(c)(2). Here is the heart of the ruling:
Although ruling on a motion to reduce is not the same as imposing a sentence, we think that the reasoning behind requiring a brief statement of reasons at sentencing compels a similar requirement when deciding a motion to reduce. Some statement of the district court’s reasoning is necessary for this court to be able to meaningfully review its decision....
We think that a district court’s order on a motion for a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) should at least address briefly any significant events that may have occurred since the original sentencing. If the district court believes that nothing particularly noteworthy has changed concerning the basis for the defendant’s original sentence, some simple explanation to that effect will apprise both the defendant and this court of that fact.
Our opinion in this case should not be read to expand what is required of a district court when sentencing a defendant or considering a motion to reduce a sentence under § 3582(c)(2). We have no intention of counting words or applying some rigid formulation to statements of reasons, particularly on a motion to reduce a sentence. The problem with the order here is not that the district court used a form order, or even that the order contained only a one-sentence explanation. The problem arises from the fact that it is impossible for us to ensure that the district court did not abuse its discretion if the order shows only that the district court exercised its discretion rather than showing how it exercised that discretion. Some minimal explanation is required.
December 29, 2009 in Implementing retroactively new USSC crack guidelines, Sentences Reconsidered | Permalink | Comments (0) | TrackBack
Is repeat offender Charlie Sheen potentially facing a long prison sentence?This article from the Los Angeles Times, which is headlined "Charlie Sheen's 1996 domestic violence incident in L.A. could become factor in new case," should prompt fans of "Two and a Half Men" to worry about the fate of the show's star. Here are the details:
Charlie Sheen’s previous domestic violence case more than a decade ago in Los Angeles could become a factor if Colorado prosecutors file charges against the actor over an alleged assault in Aspen last week.
Katie Buckland, executive director of the Women’s Law Center who has handled domestic violence cases for the L.A. city attorney’s office in the past, said the earlier instance of domestic abuse could be critical during both a trial and a sentencing if Sheen is convicted. “A second offense is always treated more seriously,” she said....
Sheen was arrested Christmas Day on suspicion of second-degree assault, menacing and criminal mischief and released on $8,500 bond, according to Aspen police. In a 911 recording released Monday, a tearful woman who identified herself as Sheen’s wife said her husband had threatened her with a switchblade-type knife. She feared she was “going to die,” the woman said.
Sheen, who stars in the CBS comedy “Two and a Half Men,” pleaded no contest to a misdemeanor charge of battery with serious bodily injury for a 1996 incident involving his then-girlfriend, Brittany Ashland.
He was accused of knocking her to the floor, leaving her bloodied and briefly unconscious. He was sentenced to two years' probation with a suspended one-year jail term and 300 hours of community service. At his sentencing, he told a judge: “I feel this is very fair, and I’m grateful.... You will not see me back in this courtroom.”
Thanks to the folks at TMZ, everyone can read this affidavit supporting Sheen's arrest. Of course, charges have to be formally filled against Carlos Irwin Estvez (aka Charlie Sheen) before sentencing particulars become central to Sheen's case. But I would like to hear in the comments from anyone familiar with Colorado sentencing concerning just how long a prison sentence Sheen could be potentially facing if the worst allegations against him are true.
China creates international row by executing Brit for drug offenseAs detailed in this Wall Street Journal article, which is headlined "China Ignores Appeals, Executes Briton," the death penalty is making some interesting international news these days. Here are the details:
China executed a British national for drug smuggling, sparking outrage from British leaders, who had appealed for clemency on mental-health grounds, and threatening to strain relations between the countries.
Akmal Shaikh, convicted of carrying more than four kilograms of heroin two years ago at Urumqi Diwopu International Airport in northwestern Xinjiang province, was executed by lethal injection on Tuesday after China's Supreme People's Court upheld his death sentence, China's state-run Xinhua News Agency reported....
British Prime Minister Gordon Brown condemned the execution, saying in a statement that he is "appalled and disappointed that our persistent requests for clemency have not been granted." He expressed his "sincere condolences" to Mr. Shaikh's family and friends. "I am particularly concerned that no mental-health assessment was undertaken," he added.
Chinese Foreign Ministry spokeswoman Jiang Yu dismissed the British complaints. At a regular news briefing she said the Chinese government is "strongly dissatisfied and is absolutely opposed to the unjustifiable condemnations" from the U.K. "We urge the British side to show respect to China's judicial supremacy and redress the mistake immediately to avoid damaging bilateral relations," Ms. Jiang said....
Xinhua quoted a statement issued by the Supreme People's Court as saying that that there was insufficient proof that Mr. Shaikh had any mental-health issues and that the evidence against him was "certain and the facts were clear." Mr. Shaikh's rights were fully granted, the court said, adding that drug crimes are serious criminal offenses with "severe negative social impact," according to the Xinhua report.
According to Chinese criminal law, people trafficking more than 50 grams of heroin can be punished by death. Reprieve, a London-based prisoner-advocacy group that lobbied for Mr. Shaikh, said he is the first European to be executed in China in 58 years.
December 28, 2009
First Circuit debates applicability of child porn trafficking sentence enhancement
Today's opinion from the First Circuit in US v. Dyer, No. 08-1343 (1st Cir. Dec. 28, 2009) (available here), confirms not only that some federal courts are working this week, but also that downloading child porn in the wrong way can make one liable at sentencing for trafficking in child porn. Here is the heart of the majority's ruling concerning the application of a federal guideline sentencing enhancement:
Dyer chose to download and frequently use LimeWire, a type of peer-to-peer software that creates a shared system of users, and he did so to acquire images of child pornography for his personal collection. He downloaded these files into a "shared" folder that he knew would be made available to others. He did so for two years and gave no indication to Agents Lechner and Pritchard that he would have stopped had he not been arrested. He knew how to turn off the "sharing" feature of LimeWire and prevent other users from accessing these features, but he did not, at any point, make an effort to do so. By his actions, Dyer took deliberate steps to become part of a virtual community of consumers of child pornography who shared images to enlarge their own collections. Our holding that these acts showed an "intent to traffic" [and thereby supports a specific guideline sentencing enhancement] likewise comports with the holdings of other circuits on similar fact patterns.
A dissenting opinion in Dyer makes much of a distinction between general intent and specific intent to argue that the defendant in this case should not be subject to a trafficking sentencing enhancement. And both the majority and dissenting opinions make for interesting reading.
New lows for murders and the crime rate in New York CityPolice and prosecutors and lots of others must be doing something right when it comes to criminal justice policy in the Big Apple because, as detailed in this AP report, new figures released today "show overall crime in the nation's largest city is down 11 percent from last year and 35 percent since 2001." This New York Times piece, headlined "New York on Track for Fewest Murders on Record," discusses in more detail the significant new drop in murder rates in NYC:
The storyline of murder in New York is one that has been undergoing constant revision since the Police Department began tracking homicides in 1962. There have been rises — the homicide rate peaked in 1990 at 2,245 — and subsequent falls. But since such statistics have been compiled and examined, there has never been as few murders in New York as there have been this year.
The city is on track, for the second time in three years, to have the fewest number of homicides in a 12-month period since 1962. As of Dec. 27, there were 461 murders; the current record low happened in 2007, when there were 496.
The murder tally has gone down despite a bad economy and predictions that crime might have hit bottom — a notion rejected by the city’s police commissioner, Raymond W. Kelly. But challenges persist: With the city facing a $4.1 billion budget deficit, the police force — which has seen its head count reduced by 6,000 officers since 2001 — may have to shrink further....
[O]ne thing has not changed: guns are still the deadliest of weapons. Most of this year’s victims, or 283 of them, were killed with a gun fired by someone they knew. Other methods of murder included being stabbed (90 victims), hit with a blunt instrument (28 victims) or asphyxiated (16 victims). One victim was murdered with a car.
Curbing gun use is linked to lowering the murder rate, and Mr. Kelly credited the mayor’s effort to stop illegal guns from flowing into New York, saying 90 percent of crime guns confiscated in the city come from out of state. He also cited the department’s program of stopping people on the streets to question and sometimes frisk them as a “life-saving” strategy that has led to 7,000 weapons seized this year, including 800 guns. “We have a policy of engagement, and I think it’s working,” Mr. Kelly said. “We believe young people, who may have a gun, think twice before they take it out on the street.”
The commissioner said the city’s current success can also be traced to eight years of programs like Operation Impact, which attacks stubborn crime plateaus, and the Real Time Crime Center, which feeds detectives instant intelligence. “We always modify, hone and adjust our strategies,” Mr. Kelly said. “We are getting better and better at it.”...
Killers and those killed are overwhelmingly male and most in both categories are between 18 and 40, the police said.
There are a number of notable sentencing stories regarding New York state and New York City that bear consideration as these encouraging crime data contemplated. First, New York state in recent years has been reducing its overall prison population and its incarceration rate. Second, the two federal districts that impose among the greatest number of below-guideline sentences are based on Manhattan and Brooklyn. Of course, based on these data, I would not make a bold claim that there is a direct causal link between more lenient sentencing outcomes and reduced crime. But I do think these NYC realities help refute the notion that crime reductions can only be achieved by more severe sentencing outcomes.