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February 25, 2009

Federal judge imposes large restitution punishment for downloading child porn

Thanks to this post by Jonathan Turley, I just discovered this local article from Connecticut about a ground-breaking new type of federal sentence for downloading child porn.  Here are the basics:

Connecticut has set a new precedent for people who have child porn.  A Stonington man convicted of possessing child pornography must pay about $200,000 in restitution to a woman photographed as a child while being sexually abused.  Senior U.S. District Judge Warren W. Eginton said his ruling Monday was the first criminal case in which someone convicted of possessing illegal images — but not creating them — is required to pay restitution.

The case involves Alan Hesketh, a British citizen who was sentenced in October to 78 months in prison for possessing and distributing nearly 2,000 photographs of child pornography. The resident of Stonington, Conn., was a vice president of Pfizer.  Pictures of the victim as a child being subjected to sexual abuse turned up in Hesketh's collection, according to prosecutors.

"There is a feeling of revulsion about this type of conduct," Eginton said, noting that Hesketh and his family were humiliated and his career was ruined. "We're dealing with a frontier here," Eginton said. But judges have discretion with criminal restitution orders.

Hesketh's attorney, Jonathan Einhorn, said he would appeal the order.  He called it unreasonable and predicted it would probably lead to similar claims by child pornography victims.  He said his client had no contact with the woman and defendants should only pay restitution to victims whose injuries they directly caused.

Einhorn also said the woman had not proven she was one of those whose image turned up on Hesketh's computer, and those who actually participated in creating pornography in other cases were ordered to pay less restitution than his client.

But James Marsh, the woman's attorney, said there is no distinction between those who produce the pornography and what Hesketh did. "The victim is a victim of sexual exploitation caused by this defendant," Marsh said.  Marsh said he did not believe the ruling would necessarily lead to a flood of new claims. Victims are often reluctant to come forward or do not have the ability or awareness to pursue cases, he said.

This is an interesting and potentially very important development in the controversial and dynamic arena of federal child porn sentencing.  Because I am a fan of financial punishments and because I see virtue in sentencing judges getting creative in difficult cases, I am inclined to praise this ruling (though I hope to see some form of written opinion to explain and support this ground-breaking ruling). 

But, as this post by Jonathan Turley highlights, a very broad definition of who is entitled to restitution raises a lot of new and potentially troublesome questions.  I also think it could (and perhaps should) lead to lots of debate about the relationship between victim restitution and prison sentences in these types of cases (especially in the context of plea discussions).  Could and should a wealthy child porn downloader offer lots of "restitution" to identified victims in exchange for a recommendation (from prosecutors and/or the victims) for s shorter prison sentence?  In light of the rights of victims under the CVRA, should victims and their advocates now be seeking to be heard about their need for restitution in the dozen of child porn cases sentenced in federal courts every week?

Notably, this AP story about the case highlights that at least one important public policy group hopes that this kind of restitution award becomes more common:

Ernie Allen, president of the National Center for Missing and Exploited Children, said he hopes the ruling leads to more restitution orders and that they serve as deterrents to child pornography. "We think this is a terrific precedent," Allen said. "The photos stay out there forever. Every time they are downloaded, every time they are distributed, the victim in that image is revictimized."

Similarly, this notable new editorial from the Connecticut Post, headlined "A welcome ruling on pornography," plainly embraces the possibility of child porn victims participating in every child porn downloading sentencing: "If [this ruling] opens the floodgates for others to pursue recompense, so much the better."

Some related recent federal child porn prosecution and sentencing posts:

February 25, 2009 in Sex Offender Sentencing | Permalink | Comments (2) | TrackBack

SCOTUS argument today on intriguing federal criminal statute

Continuing a Term in which it is considering a whole bunch of federal criminal statutory interpretation questions, the Supreme Court today will hear argument in Flores-Figueroa v. United States.  This entry at SCOTUSwiki provides an effective account of the basic legal issue in the case:

The federal aggravated identity theft statute, 18 U.S.C. § 1028A(a)(1), imposes a mandatory two-year sentence on anyone who, during and in relation to certain predicate offenses, “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.”  In Flores-Figueroa v. United States, No. 08-108, the Court will consider whether, to secure a conviction under this statute, the Government must show that the defendant knew that the means of identification he used belonged to another person.

But this editorial in today's New York Times, headlined "And Unequal Justice for Some," effectively highlights that there is a lot more to this case:

The Supreme Court hears arguments Wednesday in the case of an illegal immigrant who provided an employer with phony identification numbers. The court must decide whether he can be convicted of the crime of aggravated identity theft — which carries a heavy mandatory prison sentence — even though he did not know the numbers belonged to specific people.

This is a case about the misapplication of federal law. It also is a case about unequal justice.  The government is misusing the identity theft law to pressure illegal immigrants to agree to quick deportation....

The federal aggravated identity theft statute is aimed at the most serious forms of identity theft — and it says the theft must be done knowingly. Congress wanted to punish those who take the identities of other people to do them harm, typically by trying to drain their bank accounts. Mr. Figueroa did not have the intent necessary to violate this law.  He was guilty of identity fraud — a separate, and lesser, crime.

One of the criminal law’s most important tasks is sorting out degrees of culpability. People like Mr. Flores-Figueroa enter the country illegally to work at jobs that pay little and are often dangerous. Their actions are illegal, but they fall far short of stealing a specific person’s identity to rob someone’s life savings. The Supreme Court should reverse Mr. Flores-Figueroa’s conviction to stop overly aggressive prosecutors from going beyond what the law allows — and to ensure that in identity theft cases, the punishment fits the crime.

February 25, 2009 in Offense Characteristics | Permalink | Comments (14) | TrackBack

More questions and fall-out following Judge Kent's guilty plea

I am most interested in the plea and sentencing issues in light of the ugliness surrounding the crimes and prosecution of now-former federal district judge Samuel Kent (basics here).  But, as detailed in these stories, this notable case stirs up a lot of other interesting legal issues:

The Chronicle story spotlights how Kent's latest claim of mental disabilities could lead to attempts to re-open some cases:

Kent told a judge Monday that he’s been treated for diabetes and psychiatric and psychological problems for the past three years.  He also said he is taking medications for all those conditions.

Tuesday the more than 200 cases that were on Kent’s Houston courthouse docket were reassigned, according to David Bradley, chief deputy clerk for the Houston area federal district. Kent had only heard civil cases since January 2008 and stopped hearing any cases in January of this year. 

Some area lawyers said Kent’s claim of disability to get retirement could raise questions about his legal decisions in the last few years in which he said he was suffering the same problems.

Kent Schaffer, a local criminal defense attorney, said if Kent thinks his symptoms are severe enough that he could take disability, they might be severe enough that attorneys should take another look at cases he decided.  “It would be malpractice for a lawyer who had a case before Kent in the last two years or so to not take a look at this,” Schaffer said. “In essence it’s an invitation to reopen cases.”

February 25, 2009 in Celebrity sentencings | Permalink | Comments (2) | TrackBack

February 24, 2009

One notable expression of concern about Hayes and gun rights

As of this writing, I have yet to see any public comments on the Hayes gun crime decision from the National Rifle Association or Second Amendment Foundation or on prominent legal blogs like Instapundit and The Volokh Conspiracy.  But I did come across this post at The Firearm Coalition, which provides this take on the import and impact of the Hayes ruling:

Today's Supreme Court decision means that anyone who has ever been convicted of any misdemeanor crime of violence — to include threats of violence, even if there was no possible way for the threat to be carried out and even if the punishment for the crime was only a $25 fine — is barred from ever possessing firearms or ammunition for the rest of their life if the victim of their crime was a person within the perpetrators household.  This leaves a large number of people at risk of committing unintentional felonies like Hayes did and it means that anyone with any record of battery or assault is likely to face drawn out delays whenever purchasing a firearm as NICS will have to determine the details of the case before approving the sale.

And of course — as with all gun control legislation — the objective and result of this law is not to keep guns away from dangerous criminals, but rather to make criminals of regular citizens and make gun ownership more cumbersome and problematic.  The passage of the Lautenburg Amendment cost thousands of police and military personnel their careers and often their pensions because they could no longer be in positions that required them to possess firearms, and it has ruined the lives of countless others who, like Randy Hayes, had no idea that they were not supposed to possess firearms and were caught up and prosecuted for being a "prohibited person" on possession of a gun.

Other posts on the Hayes decision:

February 24, 2009 in Second Amendment issues | Permalink | Comments (9) | TrackBack

More discussion of cost concerns in debates over the death penalty

FOXNews has this new article on capital punishment's costs, headlined "Lawmakers Cite Economic Crisis in Effort to Ban Death Penalty: A number of state legislators are citing the country's economic woes as a reason to overturn capital punishment laws." Here are excerpts:

Kansas Republican state Sen. Carolyn McGinn, who has proposed a bill to overturn the death penalty in the state, is one of a growing number of legislators nationwide who are citing drained resources and severe budget cuts as a reason to ban capital punishment. "We're looking at any way we can to save money moving forward in the state of Kansas," McGinn told FOXNews.com. "This will save significant money -- money that could be used toward education programs and toward community corrections programs," she said.

Colorado, Kansas, Maryland, Montana, New Hampshire, Nebraska and New Mexico are among those states actively considering abolishing executions as a way to cut costs. But in other states, including Texas and California, the debate has gained little ground.

The proposal has infuriated many who say the death penalty cannot be decided in dollars and cents. "You cannot put a price on justice," said Kansas Attorney General Stephen Six. "Our death penalty statute is a useful tool for law enforcement as they bring justice to families devastated by heinous and violent murder."...

A 1992 estimate in Texas -- which has had more executions than any other state since the U.S. Supreme Court reinstated the death penalty in 1976 -- showed that death row cases cost taxpayers $2.3 million per case, compared to $750,000 for life sentence cases.

McGinn cited a 2003 state audit that reported the median cost for death penalty cases in Kansas was $1.26 million through execution, while non-death penalty cases cost $740,000 through the end of a prisoner's incarceration. McGinn said legal fees related to death row cases make up a large expense for states, which often have to pay the costs of both the prosecution and defense in capital punishment trials.

"When you add all those costs up and weigh it against that individual being isolated and locked up for the rest of his or her life, it's a much greater cost," said McGinn. She said capital murder trials, on average, cost 16 times more than non-death penalty cases.  The appeals cost 21 times more, she said.

Some recent related posts:

UPDATE:  Wednesday's New York Times has this similar article, headlined "Citing Cost, States Consider End to Death Penalty." Here is how this piece starts:

When Gov. Martin O’Malley appeared before the Maryland Senate last week, he made an unconventional argument that is becoming increasingly popular in cash-strapped states: abolish the death penalty to cut costs. Mr. O’Malley, a Democrat and a Roman Catholic who has cited religious opposition to the death penalty in the past, is now arguing that capital cases cost three times as much as homicide cases where the death penalty is not sought. “And we can’t afford that,” he said, “when there are better and cheaper ways to reduce crime.”

Lawmakers in Colorado, Kansas, Nebraska and New Hampshire have made the same argument in recent months as they push bills seeking to repeal the death penalty, and experts say such bills have a good chance of passing in Maryland, Montana and New Mexico. Death penalty opponents say they still face an uphill battle, but they are pleased to have allies raising the economic argument.

Efforts to repeal the death penalty are part of a broader trend in which states are trying to cut the costs of being tough on crime. Virginia and at least four other states, for example, are considering releasing nonviolent offenders early to reduce costs. The economic realities have forced even longtime supporters of the death penalty, like Gov. Bill Richardson of New Mexico, to rethink their positions.

Relatedly, I just noticed this new editorial from a local paper in Florida, headlined "Capital-Punishment Cost: Death Penalty and Taxes."  Here is how it starts:

The high cost of death-penalty cases becomes ever harder to justify as recession threatens basic law-enforcement funding.  Last month, dozens of probation officers and about 100 positions at the Florida Department of Law Enforcement were cut, with others barely escaping the state budget blade. Counties are trimming sheriff's personnel. Many jails are overcrowded.

All of this occurs as violent crime in Florida persists at rates higher than the national averages.  In such a climate, the state should rethink its pursuit of the "ultimate punishment."  Because of heightened constitutional requirements, death-penalty cases are far more expensive than murder trials in which life without parole is sought.

February 24, 2009 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

GPS tracking confirms, but does prevent, murder of teen by sex offender

Though GPS tracking might seem to hold great promise for regulating the activities of certain dangerous offenders upon their release from prison, this local story from Oregon highlights why this technology is not a panacea:

A GPS tracking unit that a homeless sex offender is required to wear corroborates his story that he killed a 13-year-old girl in a Hazel Dell field, investigators said today. According to a probable cause affidavit filed in Clark County Superior Court, Darrin Eugene Sanford was being monitored by the state Department of Corrections, and the GPS unit shows he was in the field when Alycia Nipp was killed Saturday night.

Detectives investigating the case identified Sanford, 30, based on descriptions provided by people who had seen him in the area. The affidavit says that when they questioned him, he confessed. He told detectives he met the girl near some vacant homes and walked with her into the field, where he tried to have sex with her....

Department of Corrections records show Sanford as a Level III sex offender — the category considered most likely to reoffend — and that he had been convicted in Clark County for communicating with a minor for immoral purposes.

Department spokesman Chad Lewis said today that Sanford had been on GPS monitoring because he did not have stable housing. Sanford also had been complying with requirements that he check in daily with his community corrections officer and pay court-ordered restitution, Lewis said. He passed at least his last two drug tests and there was no indication he had tried to tamper with his GPS locator, at least not recently, Lewis said.

February 24, 2009 in Sex Offender Sentencing | Permalink | Comments (5) | TrackBack

Federal sentences imposed on cops after deadly collateral damage from the drug war

As detailed in this CNN report, a trio of "former Atlanta police officers were sentenced Tuesday to prison terms ranging from five to 10 years for covering up a botched drug raid in which a 92-year-old woman was killed."  In this discussion of the sentencing, Radley Balko at Reason notes some drug war comparison outcomes:

By comparison, Ryan Frederick — the Chesapeake, Virginia man who says he mistakenly fired one shot that struck and killed a police officer during a drug raid on his home — received a 10-year sentence. Cory Maye, who also mistakenly shot and killed a cop during a botched drug raid, is still in prison for the rest of his life.

February 24, 2009 in Offense Characteristics | Permalink | Comments (3) | TrackBack

Yet another notable written opinion in a federal child porn downloading case

I received this afternoon yet another fascinating district court opinion concerning sentencing in a federal child porn downloading case. In US v. Beiermann, No. CR 07-4018-MWB (N.D. Iowa Feb. 24, 2009) (available for download below), the defendant faced a guideline sentence range of 210-262 months' imprisonment. In an opinion that runs over 50 pages(!), the district judge explains in detail why he imposed a sentence of 90 months.  Here is how the Beiermann opinion starts and ends:

This case, one of approximately 2,200 sentencings over which I have presided in nearly fifteen years on the federal bench, came before me for sentencing of a defendant who had been an Eagle Scout, with no criminal history points, for offenses involving possessing, receiving, transporting, and shipping child pornography in violation of 18 U.S.C. § 2252A.  This case raises the question of the merits of the advisory United States Sentencing Guideline for defendants convicted of child pornography offenses, U.S.S.G. § 2G2.2, where, inter alia, this guideline purportedly is the result of congressional mandates rather than the United States Sentencing Commission’s exercise of its institutional expertise and empirical analysis.  Although I find that the defendant’s offenses are very serious, I nevertheless find, as have several other district court judges, that a sentence in strict accordance with the advisory guideline for child pornography offenses would be at odds with the “parsimony provision” of the federal sentencing statute, 18 U.S.C. § 3553(a), which directs me to impose a sentence that is “sufficient, but not greater than necessary” to accomplish the goals of sentencing. This memorandum, therefore, explains my rationale for the sentence imposed....

Recognizing that Beiermann has committed serious crimes, but that, for all of the reasons discussed in detail above, the applicable advisory sentencing guideline is not a reliable indicator of the Sentencing Commission’s perspective on a fair sentence — and, indeed, the advisory guideline sentence must be rejected both on categorical, policy grounds, even in a “mine-run” case, and certainly must be rejected on the basis of an individualized determination in this case — I find that a sentence that is “sufficient, but not greater than necessary” to accomplish the goals of sentencing, see 18 U.S.C. § 3553(a), is 90 months of incarceration followed by 10 years of supervised release. Such a sentence is appropriate in light of all of the § 3553(a) factors and, therefore, is sufficient, but not greater than necessary, to accomplish the goals of sentencing.

Download Beierman.sentencing.final.022409

February 24, 2009 in Sex Offender Sentencing | Permalink | Comments (6) | TrackBack

Eleventh Circuit holds erroneous sentencing does not violate a constitutional right

I have long thought that being sentenced to a longer prison term than is legally appopriate would constitute a violation of a constitutionally protected liberty interest.  But a short opinion from the Eleventh Circuit today in Hunter v. US, No. 07-13701 (11th Cir. Feb 24, 2009) (available here) suggests otherwise.  Here is how Hunter starts:

This appeal presents the issue whether a criminal defendant who was erroneously sentenced has made “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Demarick Hunter is a federal prisoner serving a sentence of imprisonment of 188 months for being a felon in possession of a firearm, 18 U.S.C. § 924(g).  He moved to vacate his sentence, 28 U.S.C. § 2255, and the district court denied his motion.  Hunter then sought certificate of appealability from this Court, and we denied the application.  The Supreme Court vacated our order denying the certificate of appealability and remanded for reconsideration in the light of its decision in Begay v. United States, 553 U.S. __, 128 S. Ct. 1581 (2008), which held that driving under the influence was not a violent felony under the Armed Career Criminal Act, 18 U.S.C. § 924(e).  Because Hunter has failed to make “a substantial showing of the denial of a constitutional right,” we deny his motion for a certificate of appealability.

February 24, 2009 in Sentences Reconsidered | Permalink | Comments (0) | TrackBack

Even the Chief and Justice Scalia are content to damn gun possession with faint praise

I have now read the Supreme Court's work in the Hayes gun possession case, and it confirms my sense that none of the Justices (even those who championed individual Second Amendment rights in Heller)have any interest in giving real force or even serious attention to the constitutional right to gun possession in the home.  Consider first this passage from the majority opinion in Hayes, authored by Justice Ginsburg and joined by Justices Alito and Kennedy:

Practical considerations strongly support our [broad interpretation of this federal criminal statute prohibiting gun possession by certain persons].  Existing felon-in-possession laws, Congress recognized, were not keeping firearms out of the hands of domestic abusers, because “many people who engage in serious spousal or child abuse ultimately are not charged with or convicted of felonies.” 142 Cong.Rec. 22985 (1996) (statement of Sen. Lautenberg).  By extending the federal firearm prohibition to persons convicted of “misdemeanor crime[s] of domestic violence,” proponents of §922(g)(9) sought to “close this dangerous loophole.” Id., at 22986.

Construing §922(g)(9) to exclude the domestic abuser convicted under a generic use-of-force statute (one that does not designate a domestic relationship as an element of the offense) would frustrate Congress’ manifest purpose.  Firearms and domestic strife are a potentially deadly combination nationwide.  See, e.g., Brief for Brady Center to Prevent Gun Violence et al. as Amici Curiae 8–15....

I highlight here key sentences because they reveal the willingness of a majority of the Supreme Court, including two of the Justices in the majority in Heller, to embrace and endorse assertions by proponents of broad gun bans and by the Brady Center as to just when certain types of firearm possession are sufficiently "dangerous" and "potentially deadly" to obviate any apparent constitutional concerns with using federal criminal prohibitions to restrict broadly any gun possession in the home by certain persons.

Perhaps even more telling, however, are the punches pulled by even Chief Justice Roberts in his closing statements in his Hayes dissent (which was joined by the surprisingly silent Justice Scalia, author of Heller majority opinion):

It cannot fairly be said here that the [statutory] text [prohibiting prohibiting gun possession by certain persons] “clearly warrants” the counter-intuitive conclusion that a “crime of domestic violence” need not have domestic violence as an element.  That leaves the majority’s arguments about legislative history and statutory purpose.  This is not the “rare” case in which such grounds provide “fair warning,” especially given that there is nothing wrong with the conduct punished — possessing a firearm — if the prior misdemeanor is not covered by the statute.

If the rule of lenity means anything, it is that an individual should not go to jail for failing to conduct a 50-state survey or comb through obscure legislative history.  Ten years in jail is too much to hinge on the will-o’-the-wisp of statutory meaning pursued by the majority.

I highlight here a key phrase that sure seems to damn "possessing a firearm" with faint praise.  Note that the Chief says merely that "there is nothing wrong with the conduct" of possessing a firearm.  In the wake of Heller, it is telling that he does not say instead that "there is a provision of the Constitution that protects an individual right to engage in the conduct" of possessing a firearm in the home for self-protection.  Moreover, in light of Heller, wouldn't reference to the Second Amendment have been appropriate at the close of this dissent?  Why didn't the Chief (or Justice Scalia) add something like this:

If the Second Amendment and Heller means anything, it is that an individual should not forever lose his right to possess a gun just because he may have long ago pled guilty to a misdemeanor that the state now says makes him too dangerous to retain his constitutional right to personal self-defense in the home.  Ten years in jail is too much to threaten on the will-o’-the-wisp of potential misdemeanor prosecutions secured by states that might be eager to pursue back-door limits on who can exercise Second Amendment rights.

Especially in light of the disrespect Heller has been given in so many other criminal justice settings, I am not at all surprised with the outcome in Hayes.  I am troubled, however, that all the Justices seem content to hope that nobody will notice their gutting of Heller is the case is simply not mentioned.  And I will be further troubled if the gun rights community fails to take even their favorite Justices to task for trying to sweep these issues under the statutory interpretation rug.

Some related Second Amendment posts:

UPDATE:  I see Tony Mauro in this coverage of the Hayes ruling has this money quote from the folks at the Brady Center:

The Brady Center to Prevent Gun Violence applauded the decision. "In its first gun case since the landmark Hellerdecision, the Court wisely upheld this reasonable restriction, said center president Paul Helmke. "Today's ruling is the right one for victims of domestic abuse and to protect law enforcement officers who are our first responders to domestic violence incidents."

Similarly, this coverage of Hayes from The Hill has various anti-gun advocates commenting that this ruling shows Heller does not mean a hell of a lot:

Gun control advocates hailed the ruling as a good sign following the Court's decision in District of Columbia v. Heller, a 2008 decision that defined the Second Amendment as covering an individual's right to possess weapons.... "That's a good sign that Heller is the limited ruling we thought it was," said Daniel Vice, a senior attorney at the Brady Center to Prevent Gun Violence.

“Today, the Supreme Court sided with abused women and children and against the gun lobby,” said Sen. Frank Lautenberg (D-N.J.), a gun control advocate and the author of the original amendment. “Today's decision means we can continue keeping guns out of dangerous hands and saving innocent lives.”

Gun control advocates spun the decision as a blow to gun rights groups. The National Rifle Association and major gun rights backers in Congress did not immediately comment for this story.

February 24, 2009 in Second Amendment issues | Permalink | Comments (24) | TrackBack

New CVRA circuit filing in big environmental case

Anyone interested in crime victims rights and the scope and application of the federal Crime Victims' Rights Act will want to keep a close eye on the high-profile environmental case involving the the criminal trial of W.R. Grace in Montana.  As detailed in this post, titled "Who Are "Victims" of Environmental Crimes? Ninth Circuit Fight Brewing in the W.R. Grace Prosecution," former federal judge Paul Cassell is taking to the Ninth Circuit this mandamus petition arguing that the district court unduly limited the reach of who qualifies as a victim under the CVRA.

As regular readers know, the the Crime Victims' Rights Act calls upon the court of appeals to "take up and decide such application forthwith within 72 hours after the petition has been filed."  In other words, it would appear that the Ninth Circuit has to rule on this matter before the end of this week

February 24, 2009 in Victims' Rights At Sentencing | Permalink | Comments (0) | TrackBack

More notable local news from the business pages of prison nation

Regular readers know my favorite modern political mantra: "It's the prison economy, stupid."  The latest opportunity to chant this mantra arises in connection with this local article from Colorado, headlined "State senator keeps Rifle prison open to protect local economy."  Here are snippets:

Dave Scherbarth, associate warden at Rifle Corrections Center, didn’t know what to think when he learned Friday that his facility would be spared from the state’s frenzied budget cuts.  The roughly 50 people who work under him were likewise at a loss.  They had, after all, spent the past month convinced they needed to find a new job because the prison was closing down, Scherbarth said.

Sen. Al White, R-Hayden, ... looked at the situation as a prime example of how the government can save jobs in tough economic times and not aggravate the problem. “We need to diversify our economy so that when these oil and gas resources dry up, or when the companies leave the area as they’re doing now, people still have a place to work,” White said.

Rifle Corrections provided that diversification for the town it’s named after, he added. “This was important to my district,” White said. “It’s a stable, diversified employment base that serves a need in the Piceance Basin, which kind of largely lives and dies on oil and gas.”

It was for those reasons he fought Gov. Bill Ritter’s plan to close the facility and transfer its employees as part of a strategy to cut into the state’s deficit, White said....

About 300 community members from around the region attended a community forum about the prison’s closing, Scherbarth said. People started writing letters to the Legislature and, pretty soon, they started getting responses. “I’m glad I don’t have to sell my house now ... (and) I’m glad my staff doesn’t have to go into the job market right now,” Scherbarth said. “This showed that when the community bands together, things do happen.”

Some related posts:

February 24, 2009 in Prisons and prisoners | Permalink | Comments (0) | TrackBack

"Is Kent getting off easy?"

The title of this post is the title of this piece in today's Houston Chronicle.  As highlighted in this post on the Kent case yesterday, I think the answer to this question is a tentative "yes" right now.  Here is how the Chronicle talks through the sentencing issues:

[Y]et to be seen is whether Kent will spend one night in prison for his crime. He faces 20 years, and prosecutors have requested three, but Senior U.S. District Judge Roger Vinson, visiting from Florida, has discretion.

Vinson’s track record in the case suggests Kent may rest easy in the punishment phase. After all, Vinson has been so concerned with protecting Kent from the powerful forces of media influence that he instated his own, unsolicited, gag order. Vinson continued enforcing the protective cloak of secrecy Monday even after the potential of jury taint was gone.

The pointless muzzle, which had also allowed Vinson to hold private hearings in the case, on Monday robbed the two victims the right to have their say in public after they’d lost the opportunity to do so in the courtroom.

Justice has been a long time coming for Kent, who may have escaped it altogether if not for the prying persistence of the press, notably the Houston Chronicle’s Lise Olsen, Rick Casey and Harvey Rice.

A just punishment for a federal judge who abused his powerful position and disgraced his office isn’t a wrist slap or a lifetime payout. Justice for Kent must sound more like a banging gavel than a half-hearted whisper.

Related post:

February 24, 2009 in Celebrity sentencings | Permalink | Comments (4) | TrackBack

SCOTUS undercuts constitutional gun rights in Hayes without even mentioning Heller or Second Amendment

As regular readers know, I have been watching the Hayescase involving a federal statute prohibiting gun possession by certain misdemeanants as a potential Second Amendment sleeper case.  And today the Supreme Court decided Hayes and kept the Second Amendment sleeping.  Indeed, I think we can and should read Hayes as an indication that the Justices are just fine with the Second Amendment sleeping with the fishes: not a single Justice even mentions Helleror the Second Amendment in the course of broadly interpreting a federal criminal statute that prohibits certain misdemeanants from ever possessing a gun.

Posts by Lyle Denniston here and here provide the basic story of Hayes, which will appear (and may be reported) to be just a technical little statutory interpretation case:

The Court has issued an opinion in United States v. Hayes(No. 07-608). The decision below, holding that a predicate offense under 18 USC 922(g)(9) must have as an element a domestic relationship between offender and victim, was reversed in a 7-2 opinion by Justice Ginsburg. Justice Thomas joined the majority only in part. The Chief Justice filed a dissenting opinion in which Justice Scalia joined. The opinion is available here...

[T]he Court expanded the reach of a 1996 federal law that bars possession of guns by a person convicted of a domestic violence crime that was a misdemeanor.  The law applies, the Court said, whenever the battered victim was in fact the wife or other family relative of the offender.  Thus, while such a domestic relationship must be proved beyond a reasonable doubt, it is not a necessary element of the crime, the decision found.  “It suffices for the government to charge and prove a prior conviction that was, in fact, an offense committed… against a spouse or other domestic victim,” the Court explained.

Once I have a chance to review the Hayes opinion closely, I will have a lot more to say about the opinion.  But my first reaction results from the fact that the Second Amendment and Hellerdo not even get mentioned by the dissenters, even though the majority's ruling would seem to provide a green light to jurisdictions looking for pretty easy ways to functionally work around the rights supposedly championed in Heller.

Because Hayestechnically involves the gun rights of "bad men" who have been convicted of certain misdemeanors rather than "good men" who never break the law, I suspect and fear that gun rights activists will try to brush this major loss under the rug.  But, as Justice Scalia stressed in his dissent yesterday, "bad men, like good men, are entitled" to have certain constitutional rights enforced on their behalf.  But, as Hayes reveals, if and whenever any government entity decides you are the wrong kind of of man, the Second Amendment and Heller become not merely diminished but entirely mute/moot.

Some related Second Amendment posts:

February 24, 2009 in Second Amendment issues | Permalink | Comments (1) | TrackBack

Different debates about death penalty in statehouses

The stories of legislative reform of the death penalty in different states remains amazingly dynamic as evidenced by these stories in today's papers:

In Alaska, "lawmakers have begun hearings on a proposal to reinstate the death penalty, a practice abolished even before statehood was granted more than half a century ago."  But in Colorado, a "House committee Monday night, after hearing hours of emotional testimony, approved a bill that would ban the death penalty."

Also, from Maryland comes this report that "Senate President Thomas V. Mike Miller Jr. (D-Calvert) said yesterday that he would like to see a relatively quick, up-or-down committee vote on a bill to repeal Maryland's death penalty."  Because debate over death penalty repeal in Maryland has been going on for years, I am sure this story will keep making headlines, too.

February 24, 2009 in Death Penalty Reforms | Permalink | Comments (1) | TrackBack

February 23, 2009

What's up with all the SCOTUS capital case cert grants from the Sixth Circuit?

There are lots of interesting issues to be mined from the group of criminal cases that the Supreme Court accepted for review today (basic details here).  But among the stories lurking therein is the Justices' continuing interest in capital cases from the Sixth Circuit.

Notably (and largely to my delight in light of my recent scholarly kvetching about the Supreme Court taking too many capital cases), the Justices have not taken up very many death penalty cases recently.  Of course, last Term brought a capital case cornucopia, with the blockbuster Baze and Kennedy and Medellinrulings.  But, since then, the Justices have decided to consider only a precious few capital cases (despite a slowly growing docket).  And, intriguingly (and coincidentally?), all of the capital cases before the Court this Term arise via habeas rulings coming from the Sixth Circuit: Cone v. Bell, Bobby v. Bies, and now Smith v. Spisak.

There are many notable case-specific aspects to each of these cases and the Sixth Circuit rulings that are now under review by the Supreme Court.  But, especially in light of my broader interest in how the Supreme Court sets its criminal docket, this pattern of cert grants seems noteworthy.

February 23, 2009 in Death Penalty Reforms | Permalink | Comments (5) | TrackBack

A CRS report on "Sentencing Levels for Crack and Powder Cocaine"

I just recived a pdf copy of a report recently issued by the Congressional Research Service, titled "Sentencing Levels for Crack and Powder Cocaine in Light of Kimbrough and the Impact of Booker."   This document, which can be downloaded below, provides a very effective review of past and present federal sentencing realities, all the way through the new guidelines and most recent Supreme Court and circuit jurisprudence.

Download Sentencing Levels for Crack and Powder Cocaine - Kimbrough and the Impact of Booker

February 23, 2009 | Permalink | Comments (0) | TrackBack

Can anyone report on Judge Samuel Kent's sentencing record?

Before diving even further into all the interesting sentencing issues raised by U.S. District Judge Samuel Kent's guilty plea (basics here), I thought it might be useful to hear about Judge Kent's record as a sentencing judge.  Because the US sentencing system does not keep judge-specific data, there is no way to formally look up Judge Kent's sentencing record during his 18 years as a federal district judge.  But I am hopeful that some readers in the know from direct experiences might be able to use the comment to report on his basic sentencing reputation.

February 23, 2009 in Celebrity sentencings | Permalink | Comments (1) | TrackBack

Judge Kent takes a deal (and now becomes the latest, greatest topic for sentencing debate)

I have not blogged at all about the ugly allegations against federal judge Samuel Kent, but this latest news about his case from Mary Flood at the Houston Chronicle means that Judge Kent may soon to become my new post-Booker federal sentencing poster-child.  Here are the basics:

U.S. District Judge Samuel Kent pleaded guilty to one count of obstruction of justice today and retired from the bench, avoiding a trial on that charge and five others accusing him of sexually abusing two female employees.  Kent was scheduled to see a jury selected this morning for his trial on all six felony counts.

Few federal judges ever go to trial, but his would have been the first in which a federal judge was accused of sexual charges. “Judge Kent believes that this settlement is in the best interest of all involved,” his attorney, Dick DeGuerin, said after this morning’s hearing.  “A trial would have been long, embarrassing and difficult for all involved,” DeGuerin added. He said Kent has retired from the bench.

Kent faces up to 20 years in prison on the obstruction charge.  Prosecutors have suggested he be sentenced to three years in prison, but the judge is not bound by that recommendation.

Senior U.S. District Judge Roger Vinson has imposed a gag order on those involved in the case, but allowed DeGuerin to make his statement to the news media. The two female court employees with whom Kent now admits he had non-consensual sexual contact also were barred from speaking by Vinson’s order. Gag orders are designed to protect the rights of defendants from public prejudice before trial. Kent has waived his right to appeal and it is unclear why Vinson would issue a gag order....

Although, in most pleas in the federal courthouse in Houston, defendants are made to state their crimes, neither Kent nor prosecutor Peter Ainsworth stated the crimes in court.  Instead, papers were filed stating that Kent had non-consensual sex with two former female employees between 2003 and 2007.  The papers also state that, as part of the investigation into a complaint by one of the women, Kent lied about his relationship with the second woman to the Special Investigative Committee of the 5th Circuit.  Kent signed those papers admitting his wrongdoing....

Kent’s sentencing [is] set [for] May [and a lawyer for one victim] said he expects the victims will have a chance to speak then. Federal law requires judges to consider the victims’ input in sentencing.

So, let's review the offense and plea basics: a federal judge has admitted to "non-consensual sex" with two federal employees and he gets to cop a plea to one obstruction count and gets a sentence recommendation from prosecutors of only three-years imprisonment.  This seems like a pretty sweet deal, especially given that hundreds of federal defendants are now serving much long prison terms for just downloading the wrong kinds of dirty pictures on their computers. 

These issues really concern me in light of the (peculiar) gag order on Judge Kent's real victims.  I wonder if the victims of his "non-consensual sex" — which is sometimes called rape where I come from — were consulted (as the Crime Victims' Rights Act arguably requires) before federal prosecutors made this sweet deal.  I also wonder if they might now urge state prosecutors to go after Judge Kent for state crimes now that he has secured such a sweet deal from the feds. 

Now, let's spot some sentencing issues:

I could go on and on, but it looks like we will have at least a few months to work through these issues.  (The CVRA issues, however, strikes me as one that might merit consideration (and litigation?) sooner rather than later.)

February 23, 2009 in Booker in district courts, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

The inane and insane realities of federal felon-in-possession prosecutions and sentencings

A little decision today from the Eighth Circuit, US v. Littrell, No. 08-1149 (8th Cir. Feb. 23, 2009) (available here), provides yet another reminder of how the federal felon-in-possession law is utilized to convict and sentence defendants for all sort of outrageous behavior that has relatively little connection to the illegal possession of a firearm.  Here are the basic offense facts as described by the Eighth Circuit in Littrell:

Early on the morning of August 2, 2006, Littrell argued with his landlady, Melissa Stout, at her home in West Des Moines, where Littrell had been renting a room for about two months.  When Stout reminded Littrell that he owed her more than $1,000 in rent and other debts, Littrell went to his bedroom, returned with a hard-sided case, and pulled a firearm.  Littrell pointed the gun at Stout and threatened to kill her, then fired a bullet into the living room ceiling and out the roof.  Littrell and his girlfriend, Chrissy Highland, went to his bedroom and packed his belongings in pillowcases and sheets.  Littrell went to the basement and cut the phone lines and threatened to kill Stout if she left the house.  Some two or three hours after firing the shot, Littrell left with Highland in Stout’s car.  Stout called the police from the home of a friend.  Five days later, the police recovered the damaged car outside a store in Des Moines about four miles from Stout’s home.  Store employees told the police that the car had been there for several days.

To me, this account of Bobby Littrell's crime spree reads like the start of a law school exam in which a student is expected to name all the serious felonies with which Littrell might be charged in state court.  In the inane and insane "real-world" of federal crime and punishment, however, the defendant here merely faces the criminal charge of a felon-in-possession offense. 

And yet, as the Littrell opinion highlights, in the inane and insane world of federal sentencing, all the offense-related facts remain relevant to federal sentencing because the district judge applies a four-level guideline sentencing enhancement because he concluded (by a preponderance of evidence) that the Bobby Littrell "used the firearm 'in connection with another felony offense,' namely, theft of his landlady’s car."  The defendant appeals by stressing evidence that the landlady "regularly allowed Littrell to borrow her car" and by arguing that his illegal firearm possession was not "in connection with" his disputed car thievery.  Not surprisingly, Bobby Littrell finds few judicial friends in the Eighth Circuit.

Given the ugly facts of the Bobby Littrell's behavior, the district court's imposition and the circuit court's affirmance of a (statutory maximum) sentence of 10 years' imprisonment seems justifiable.  But I cannot help but wonder if the authors of the Bill of Rights would have been even more troubled by the ugly way federal criminal power is exercised here.  Rather than having state authorities indict and try the defendant for all his local crimes, the feds come in, secure a conviction through a broad regulatory law, and then obtain a long prison sentence by "proving" state crimes to a federal district judge (by a preponderance of evidence) at sentencing.  Thanks to modern criminal justice realities, federal prosecutors can easily make a sentencing end-run around most of the constitutional criminal procedure rules the Framers put into the Fifth and Sixth Amendments.

February 23, 2009 in Offense Characteristics | Permalink | Comments (9) | TrackBack