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January 6, 2010

"Can Congress Overturn Kennedy v. Louisiana?"

The question in the title of this post is part of the title of this interesting new piece on SSRN by Richard Re.  The full title is "Can Congress Overturn Kennedy v. Louisiana? The Contingency of Recent Eighth Amendment Jurisprudence," and here is the abstract:

As recently illustrated by Kennedy v. Louisiana, the Supreme Court regularly interprets the Eighth Amendment based on the perceived existence of “national consensus.”  While this practice has been the topic of extensive commentary and criticism, the existing debate has overlooked the most natural implication of the Court’s consensus-based argumentation – namely, the possibility that recent Eighth Amendment jurisprudence is subject to federal legislative override.  This Article argues from existing case law that Kennedy should be susceptible to democratic correction via countervailing federal legislation.  Such legislation would demonstrate that no “national consensus” supports the Court’s holding, thereby suggesting that the punishment in question does not actually violate the Eighth Amendment.

One might respond that Kennedy would have found a constitutional violation based on the Court’s “independent judgment,” regardless of whether a supportive national consensus existed.  But even assuming that is true, federal legislation could address the concerns that underlie the Court’s independent judgment analysis.  Either way, Kennedy’s contingent reasoning would permit at least some correction by the democratic branches. Exploring these possibilities allows us to better understand and justify recent Eighth Amendment jurisprudence, as well as recent substantive due process cases like Lawrence v. Texas that also look to state and federal practice as sources of constitutional law.  Ultimately, though, the most important consequence of appreciating Kennedy's democratic reversibility has more to do with the President than with the professoriate.  As a candidate for President, Barack Obama pointedly criticized Kennedy’s holding.  If this Article is correct, then the President and Congress now have an opportunity to engage the Court in a dialogue regarding the Eighth Amendment’s contemporary practical meaning.

January 6, 2010 in Death Penalty Reforms, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (25) | TrackBack

Cranky convicted corporate cooperator complaining about prosecutors

This Bloomberg report, which is headlined "Ex-UBS Banker, Informant Birkenfeld Seeks Probe of Prosecutors," provides the latest news on a white-collar case that has the feds and their corporate cooperator in a fight.  Here are the details:

Bradley Birkenfeld, a key informant in a U.S. investigation of offshore tax evasion aided by UBS AG, claimed in a complaint that federal prosecutors made false statements to a judge who sentenced him to 40 months in prison.

Lawyers for Birkenfeld, a former UBS banker, claimed prosecutors made “inaccurate, misleading and incomplete” statements about him at his Aug. 21 sentencing hearing and in an interview on CBS Corp.’s 60 Minutes television show aired Jan. 3.  Birkenfeld, 44, must report to prison on Jan. 8 and can’t extend his surrender date as he requested, a judge ruled Jan. 4.

Birkenfeld asked for an internal probe in a letter yesterday to U.S. Attorney General Eric Holder and the Justice Department’s Office of Professional Responsibility, which investigates allegations of attorney misconduct.  Birkenfeld began telling U.S. authorities in 2007 how UBS helped Americans hide assets in secret Swiss accounts.  He pleaded guilty in 2008 to helping California billionaire Igor Olenicoff and others evade taxes.

“It is one thing to hold Mr. Birkenfeld accountable for wrongdoing,” Birkenfeld’s lawyers wrote. “It is another thing altogether to imprison Mr. Birkenfeld on false information, especially when he is treated far more harshly than the wrongdoers who actually profited from the illegal tax schemes that Mr. Birkenfeld disclosed.”

Justice Department spokeswoman Tracy Schmaler said in a statement that Birkenfeld pleaded guilty to conspiracy to defraud the U.S. and admitted criminal wrongdoing.  “At his sentencing in August, Mr. Birkenfeld made arguments for leniency,” Schmaler said.  “In a motion filed in December, Mr. Birkenfeld requested a resentencing hearing citing the same issues raised in his letter to the Justice Department Office of Professional Responsibility. After consideration of these issues, that request was denied by a federal judge.”...

At his sentencing hearing in federal court in Fort Lauderdale, Florida, Justice Department prosecutor Kevin Downing said the U.S. couldn’t have unraveled the bank’s “massive tax fraud scheme” without Birkenfeld’s cooperation.  Downing also recommended a 30-month term for Birkenfeld, saying he wasn’t initially truthful about Olenicoff.  U.S. District Judge William Zloch, who could have imposed as many as five years, instead gave Birkenfeld a term of three years and four months.

Olenicoff, who pleaded guilty in 2007 to filing a false tax return, got two years’ probation and paid $52 million in back taxes, fines and penalties.  Last year, six former UBS clients pleaded guilty....

The letter was sent yesterday by attorneys Stephen Kohn and Dean Zerbe of the National Whistleblowers Center in Washington.

January 6, 2010 in Offender Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

"Juvenile Injustice"

The title of this post is the headline of this editorial in today's New York Times.  Here are excerpts:

Gladys Carrión, New York’s reform-minded commissioner of the Office of Children and Family Services, has been calling on the state to close many of its remote, prison-style juvenile facilities and shift resources and children to therapeutic programs located in their communities.  Her efforts have met fierce and predictably self-interested resistance from the unions representing workers in juvenile prisons and their allies in Albany.

A recent series of damning reports have underscored the flaws in New York’s juvenile justice system and the urgent need to shut down these facilities. The governor and the State Legislature need to pay attention....

Not surprisingly, these institutions do a terrible job of rehabilitation.  According to a study of children released from custody between 1991 and 1995, 89 percent of the boys and 81 percent of the girls were eventually rearrested. New York’s facilities are so disastrous and inhumane that state officials recently asked the courts to refrain from sending children to them, except in cases in which they presented a clear danger to the public.

Mr. Paterson’s task force was rightly impressed with Missouri’s juvenile justice system.  It has adopted smaller regional facilities that focus on rehabilitation and house troubled youths as close to home as possible in order to involve parents and community groups in the therapeutic process. Missouri also has cut recidivisim rates by smoothing re-entry and helping young people with drug treatment, education or job placement.

New York clearly needs to follow Ms. Carrión’s advice and adopt a Missouri-style system.  That means the Legislature will finally have to put the needs of the state’s children ahead of the politically powerful unions and upstate lawmakers who want to preserve jobs — and the disastrous status quo — at all costs.

January 6, 2010 in Offender Characteristics, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (3) | TrackBack

January 5, 2010

Quite a death penalty start: many executions scheduled to kick off 2010

As detailed on this upcoming executions page at the Death Penalty Information Center, the new year and the new decade is due to get off to a fast and potent start when it comes to executions.  Specifically, three defendants are right now scheduled to be executed in three different states on Thursday, January 7.  And because the three states in which these executions are scheduled — Louisiana, Ohio and Texas — are not strangers to the death penalty, there is likely a good chance that none of the executions will be stayed.

In addition, South Carolina has an execution scheduled for January 8, and both Oklahoma and Texas have additional executions slated for next week. If all these executions go forward, 2010 will start on a record pace for the total number of executions in a calender year in the United States. It appears, however, that only about a half-dozen executions are currently scheduled for the rest of the winter. Thus, it is much too early to predict if 2010 will mark a year in which the the number of executions came roaring back to life.

January 5, 2010 in Death Penalty Reforms | Permalink | Comments (7) | TrackBack

Split Ninth Circuit panel finds Washington's disenfranchisement of felons violates the VRA

In a ruling that surely will not be the last word on the topic, a split Ninth Circuit panel today in Farrakhan v. Gregoire, No. 06-35669 (9th Cir. Jan. 5, 2010) (available here), has decided that Washington's felon disenfranchisement law violates the federal Voting Rights Act. Here is how the majority opinion starts:
Plaintiffs, minority citizens of Washington state who have lost their right to vote pursuant to the state’s felon disenfranchisement provision, filed this action in 1996 challenging that provision on the ground that, due to racial discrimination in the state’s criminal justice system, the automatic disenfranchisement of felons results in the denial of the right to voteon account of race, in violation of § 2 of the Voting Rights Act (“VRA”), 42 U.S.C. § 1973.  We earlier reversed the district court’s grant of summary judgment to Defendants.  See Farrakhan v. Washington, 338 F.3d 1009 (9th Cir. 2003), cert. denied, 543 U.S. 984 (2004) (“Farrakhan I”).  On remand, the district court again granted summary judgment to Defendants.  Plaintiffs timely appeal. We reverse and grant summary judgment to Plaintiffs.
Here is how the dissenting opinion in Farrakhan gets going:

In granting summary judgment to plaintiffs, the majority has charted territory that none of our sister circuits has dared to explore. The First, Second, and Eleventh Circuits have determined that vote denial challenges to felon disenfranchisement laws are not cognizable under the Voting Rights Act. See Simmons v. Galvin, 575 F.3d 24 (1st Cir. 2009); Hayden v. Pataki, 449 F.3d 305 (2d Cir. 2006) (en banc); Johnson v. Governor of State of Fla., 405 F.3d 1214 (11th Cir. 2005) (en banc).  That preliminary question was settled by our circuit in Farrakhan v. Washington, 338 F.3d 1009 (9th Cir. 2003) (“Farrakhan I”).  While I believe that the felon disenfranchisement challenge is not a comfortable fit within the Voting Rights Act, I do not dispute the continuing validity of Farrakhan I.  The wisdom of Farrakhan I is not within the purview of the panel to reconsider here.  See Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc) (holding that prior circuit authority is binding on three-judge panels unless “clearly irreconcilable with the reasoning or theory of intervening higher authority”). However, in part because the holding of Farrakhan I places us in a crowd of one amongst the circuits, I believe we should be particularly mindful before reversing the district court and invalidating felon disenfranchisement in the State of Washington.  The majority has failed to act with appropriate caution. I respectfully dissent.

I feel confident predicting that this notable and important ruling will be subject to en banc review by the Ninth Circuit and/or to Supreme Court review (assuming the state of Washington seeks review).  Among interesting story lines to watch as this case goes forward is whether and how the Solicitor General of the United States might get involved.

January 5, 2010 in Criminal Sentences Alternatives, Reentry and community supervision, Who Sentences? | Permalink | Comments (10) | TrackBack

Federal judge demands federal prosecutors to address restitution issues in child porn cases

A helpful reader alerted me to this local story reporting on a notable and important twist in the developing debate over whether children pictured in child porn can get awards of restitution from those who download these pictures.  The story is headlined, "Federal judge asks prosecutors to put a price on child porn," and here is how it starts:

She goes by the name of "Amy," and the photos her uncle took of her a decade ago -- when she was 8 or 9 years old -- are among the most widely circulated series of child pornography images in the United States.

Now her fight for damages from those who possess or distribute those photos is emerging as a big issue in federal courtrooms across the country. Including here.  The question is: How much can one offender possessing any of the millions of images circulating on the Internet be expected to pay to any of the thousands of victims worldwide? Amy is seeking a total of more than $3.3 million.

On Monday, Judge Patrick Schiltz in U.S. District Court in St. Paul issued an order demanding to know why restitution was not even requested by the U.S. attorney's office in the case of a Minnesota man who pleaded guilty to possession of child pornography.  Schiltz said Congress has made it clear that restitution for child porn victims must be considered.

A request for restitution for a victim in a case here -- probably Amy -- was included in the pre-sentence report for Brandon Anthony Buchanan. Yet, in Buchanan's case, as well as in a number of other local child porn cases, Schiltz said that the U.S. attorney's office has been mute on the issue of restitution.

"The Court will no longer accept silence," Schiltz said in his order filed Monday. He said the U.S. attorney must submit a memorandum by Jan. 29 explaining why the victim is not entitled to restitution.  Schiltz said he could not talk about the case because it is ongoing. Neither can the U.S. attorney's office, said a spokeswoman.

When asked about the issue of restitution in child pornography cases, First Assistant U.S. Attorney John Marti said: "This is an emerging issue and one we are looking at very closely. We will seek restitution in those cases where we believe it is appropriate and authorized by law."

Some related recent federal child porn prosecution and sentencing posts:

UPDATE:  I see that Paul Cassell over at Volokh is here discussing Judge Schiltz's order, and provide this link.  Paul has this take on the debates concerning restitutions for the victims of child porn:

The issue of restitution in child pornography cases is an interesting and important one that seems destined to ultimately go to the U.S. Supreme Court.  My own view is that Congress drafted a very broad restitution statute designed to give the maximum possible recovery to victims of child pornography.  Moreover, if any doubt existed about how to interpret this remedial statute, it should be resolved in favor of the innocent victims of these offenses rather than the criminals who continue to cause injury by illegally possessing the pictures in question.

January 5, 2010 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (8) | TrackBack

"Do Standards of Review Matter? The Case of Federal Criminal Sentencing"

The title of this post is the title of this interesting empirical article by Max Schanzenbach and Joshua Fischman available here via SSRN.  Here is the abstract:

We exploit changes in sentencing doctrine over the last eighteen years to examine the interplay of judicial ideology, standards of review, and the United States Sentencing Guidelines.  We find substantial differences in sentencing practices among district judges along two lines: whether judges were appointed by Republican or Democratic presidents, and whether judges joined the federal bench before the Guidelines.  Democrats and judges appointed prior to the Guidelines’ adoption depart more from the Sentencing Guidelines and give lower sentences.  However, the differences between Republicans and Democrats increase substantially as the standard of review becomes more deferential. On the other hand, we find that judges appointed before the Guidelines were adopted are significantly less responsive to changes in the standard of review.  Our results have broad implications for the study of judicial behavior by showing that district judges respond to standards of review and that aversion to reversal acts as a substantial constraint on sentencing decisions.  However, the unresponsiveness of judges appointed prior to the Guidelines suggests that this constraint does not operate uniformly, but rather varies with a judge’s respect for the underlying legal regime.

January 5, 2010 in Recommended reading, Sentences Reconsidered | Permalink | Comments (1) | TrackBack

NBA star Arenas might discover that jokes with guns can lead to jail time

This new piece from the Los Angeles Times provides the latest news concerning the holiday brush with the law for NBA star Gilbert Arenas:

Washington Wizards star Gilbert Arenas says he took unloaded guns from his locker in a "misguided effort to play a joke" on a teammate.  Arenas released a written statement Monday after meeting with law enforcement officials.  Arenas' lawyer says the player voluntarily met with prosecutors and detectives and answered every question during a two-hour interview.

In his statement, Arenas repeated his assertion that he brought four guns to the Verizon Center to store in his locker in order to get them out of his house and away from his children.  He said he mistakenly believed that recent changes in District of Columbia law made it legal for him to store unloaded guns there.

As every 1L should know, ignorance of the law is generally no excuse, and this new piece from CBS Sports speculates about possible criminal charges and sentencing prospects for Arenas:

"The U.S. Attorney will have to file charges for possession of a pistol without a license," [an] official said, speaking on condition of anonymity because he did not have jurisdiction over the case.  "The prosecutor cannot simply walk away from this case."

Depending on what facts are discovered in other interviews with possible witnesses to the Dec. 21 locker room confrontation between Arenas and previously obscure guard Javaris Crittenton, the official said one likely outcome would be the following: Arenas, 27, would be permitted to plead guilty to charges of carrying a pistol without a license, a felony that carries a maximum of five years in prison.  Such a charge would require a grand jury indictment, which could be acquired quickly since five grand juries are seated at any given time in the District.  Any other charges -- which could include misdemeanor counts for possession of unregistered firearms, carrying maximum jail time of six months for each count -- would be dismissed.  In exchange for Arenas' cooperation and guilty plea, the prosecutor would ask for no jail time.

"Given his prior offense, however, a judge might consider jail time in this case," one of the law enforcement officials said. "It all depends on which judge he draws."  Arenas pleaded guilty to charges of failing to maintain proper registration of a firearm in California in 2003 while playing for the Golden State Warriors.

January 5, 2010 in Celebrity sentencings | Permalink | Comments (5) | TrackBack

"Prisons and Budgets"

The title of this post is the headline of this effective editorial that appeared in yesterday's New York Times.  Here are excerpts:

The United States, which has less than 5 percent of the world’s population, has about one-quarter of its prisoners. But the relentless rise in the nation’s prison population has suddenly slowed as many states discover that it is simply too expensive to overincarcerate.

Between 1987 and 2007 the prison population nearly tripled, from 585,000 to almost 1.6 million. Much of that increase occurred in states — many with falling crime rates — that had adopted overly harsh punishment policies, such as the “three strikes and you’re out” rule and drug laws requiring that nonviolent drug offenders be locked away.

These policies have been hugely costly. According to the Pew Center on the States, state spending from general funds on corrections increased from $10.6 billion in 1987 to more than $44 billion in 2007, a 127 percent increase in inflation-adjusted dollars. In the same period, adjusted spending on higher education increased only 21 percent.

In 2008, the explosion of the prison population ground to a near halt, according to data released last month by the Bureau of Justice Statistics. About 739,000 inmates were admitted to federal and state facilities, only about 3,500 more than were released.

One factor seems to be tight budgets as states decide to release nonviolent offenders early. This can not only save money. If done correctly, it can also be very sound social policy. Many nonviolent offenders can be dealt with more effectively and more cheaply through treatment and jobs programs....

For many years, driving up prison populations has been an easy thing for elected officials to do, popular with voters and powerful corrections officer unions. The new incarceration figures suggest, however, that in the current hard economic times, strapped states are beginning to realize that they do not have the money to keep people in prison who do not need to be there.

January 5, 2010 in Scope of Imprisonment | Permalink | Comments (9) | TrackBack

January 4, 2010

US Justice Department issues new guidance to federal prosecutors on criminal discovery

As detailed in this official DOJ blog report, "the Deputy Attorney General issued three memoranda regarding criminal discovery practices including a memorandum to all prosecutors containing guidance regarding criminal discovery that prosecutors should follow to help assure that they meet discovery obligations in future cases."  And thanks to the same posting, everyone can now read the full memos with the click of a mouse:

Obviously, these memos do not directly concern sentencing issues, but they do cover important ground that impacts every federal criminal prosecution. 

January 4, 2010 in Who Sentences? | Permalink | Comments (1) | TrackBack

Justice Scalia makes pitch for diversity on Supreme Court

I am pleased to see this notable new AP piece reporting on interesting comments from Justice Antonin Scalia.  The piece is headlined "Scalia: Varied job experience needed on high court," and here are excerpts:

Supreme Court Justice Antonin Scalia says he's concerned there aren't more people with varying professional backgrounds being nominated to the nation's highest court....

He said there were three justices with no prior judicial experience [when he first joined the Court] and today there are none.  Scalia said he's concerned about the practice because "every aspect of your career broadens your outlook" so "it's good for the court to have people of varying backgrounds."

Regular readers know that I have long been an advocate of diversity on not just the Supreme Court, but also lower courts, especially as concerns diverse pre-judicial legal experience.  I am glad to discover that at least one Supreme Court Justice is a fellow traveler in this respect.

Some related new and old posts:

January 4, 2010 in Who Sentences? | Permalink | Comments (11) | TrackBack

Fourth Circuit affirms convictions and sentence of Zacarias Moussaoui

Through a ruling that might provide a boost for the decision by the Obama Administration to try other 9/11 conspirators in federal court, today the Fourth Circuit has affirmed the convictions and sentence of Zacarias Moussaoui.  The unanimous panel ruling in US v. Moussaoui, No.06-4494 (4th Cir. Jan 4, 2010) (available here), runs 77 pages and gets started this way:
Zacarias Moussaoui pled guilty to six criminal conspiracy counts arising from the al Qaeda terrorist organization’s plot to use commercial aircraft to commit terrorist attacks in this country, including the attacks that occurred on September 11, 2001.  In a subsequent sentencing proceeding, the jury declined to impose the death penalty and the district court sentenced Moussaoui to life imprisonment without the possibility of release on all six counts, with the sentence on the first count to be served consecutively to the sentences on the other counts.  In this appeal, Moussaoui challenges the validity of his guilty plea and his sentences.  He has also filed a motion to remand, based upon the Government’s disclosure of classified information during the pendency of this appeal.  We affirm Moussaoui’s convictions and sentences in their entirety and deny his motion to remand.

January 4, 2010 in Celebrity sentencings, Offense Characteristics | Permalink | Comments (7) | TrackBack

Interesting coverage of ALI's notable death penalty move last year

Adam Liptak's Sidebar column in the New York Times this week effectively covers notable ALI news from a few months ago (which I first reported here). The piece is headlined "Group Gives Up Death Penalty Work in Frustration," and here are excerpts:

Last fall, the American Law Institute, which created the intellectual framework for the modern capital justice system almost 50 years ago, pronounced its project a failure and walked away from it.

There were other important death penalty developments last year: the number of death sentences continued to fall, Ohio switched to a single chemical for lethal injections and New Mexico repealed its death penalty entirely.  But not one of them was as significant as the institute’s move, which represents a tectonic shift in legal theory.

“The A.L.I. is important on a lot of topics,” said Franklin E. Zimring, a law professor at the University of California, Berkeley. “They were absolutely singular on this topic” — capital punishment — “because they were the only intellectually respectable support for the death penalty system in the United States.”

The institute is made up of about 4,000 judges, lawyers and law professors.  It synthesizes and shapes the law in restatements and model codes that provide structure and coherence in a federal legal system that might otherwise consist of 50 different approaches to everything.

In 1962, as part of the Model Penal Code, the institute created the modern framework for the death penalty, one the Supreme Court largely adopted when it reinstituted capital punishment in Gregg v. Georgia in 1976.  Several justices cited the standards the institute had developed as a model to be emulated by the states.

The institute’s recent decision to abandon the field was a compromise.  Some members had asked the institute to take a stand against the death penalty as such.  That effort failed.  Instead, the institute voted in October to disavow the structure it had created “in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment.”

That last sentence contains some pretty dense lawyer talk, but it can be untangled.  What the institute was saying is that the capital justice system in the United States is irretrievably broken....

Roger S. Clark, who teaches at Rutgers School of Law in Camden, N.J., and was one of the leaders of the movement to have the institute condemn the death penalty outright, said he was satisfied with the compromise. “Capital punishment is going to be around for a while,” Professor Clark said.  “What this does is pull the plug on the whole intellectual underpinnings for it.”...

Some supporters of the death penalty said they welcomed the institute’s move.  Capital sentencing “is so micromanaged by Supreme Court precedents that a model statute really serves very little function,” Kent Scheidegger of the Criminal Justice Legal Foundation wrote in a blog posting. “We are perfectly O.K. with dumping it.”  Mr. Scheidegger expressed satisfaction that an effort to have the institute come out against the death penalty as such was defeated.

But opponents of the death penalty said the institute’s move represents a turning point . “It’s very bad news for the continued legitimacy of the death penalty,” Professor Zimring said.  “But it’s the kind of bad news that has many more implications for the long term than for next week or the next term of the Supreme Court.”

Samuel Gross, a law professor at the University of Michigan, said he recalled reading Model Penal Code as a first-year law student in 1970.  “The death penalty was an abstract issue of little interest to me or my fellow students,” he said.  But he remembered being impressed by the institute’s work.  “I thought in passing that smarter people than I had done a sensible job of figuring out this tricky problem.”

Things will look different come September, Professor Gross said. “Law students who take first-year criminal law from 2010 on,” he said, “will learn that this same group of smart lawyers and judges — the ones whose work they read every day — has said that the death penalty in the United States is a moral and practical failure.”

I am not surprised that various academics think that a decision by the ALI driven by a group of academics is a very big deal.  But I disagree considerably with Liptak's suggestion that the ALI's decision here was the biggest news concerning the death penalty in 2009.  I have seen much more writing and heard much more talk about Ohio's switch in lethal injection protocols than I have seen and heard about the ALI's move.  Moreover, the inauguration of another Democratic President who appears to be a serious supporter of the the death penalty strikes me as likely to have a much bigger long-term impact than what the ALI has done.

Some recent related posts:

January 4, 2010 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

"Prosecutors seek nearly $200k for child porn victim"

The title of this post is the headline of this interesting local article reporting on another case of a child porn victim seeking a significant restitution award from a person who downloaded the wrong dirty picture. Here are excerpts:

Federal prosecutors want Hammond federal Judge Joseph Van Bokkelen to order Portage child pornography convict Mark Ontiveros to pay the victim $193,310.86 in restitution because his computer held images of Vicky before his arrest in summer 2008. Most of that money would be earmarked for her mental health treatment and counseling, according to federal court records.

Ontiveros' attorney, Bryan Truitt, said his client doesn't deny he possessed child pornographic images, a crime that will net the convicted man at least five years in prison. But Truitt said he will argue Ontiveros cannot and should not pay almost $200,000 for the psychological consequences of the girl's sexual exploitation. Ontiveros is not the "proximate cause" of enough harm to warrant that figure, Truitt said....

Prosecutors claim investigators found Ontiveros had collected more than 1,300 images and 18 videos showing children "posing lasciviously" or being raped or molested. Ontiveros admitted to police he viewed child pornography for as many as three hours per day, sometimes when his young son was in the room, according to court records.

At least one ofthe images in Ontiveros' collection is from a series of sexually explicit pictures of the girl referred to in court papers as "Vicky." Nine other children "known to law enforcement" were found in Ontiveros' pictures and videos, but Vicky's lawyer was the only attorney to seek restitution, according to the motion filed by Assistant U.S. Attorney Jill Trumbull-Harris. Vicky's lawyer requested $165,905 for future counseling, $23,205.86 for treatment and "legal-related" costs and $4,200 in attorney fees, Trumbull-Harris wrote....

Vicky will not testify at Ontiveros' sentencing because of "recent severe psychological trauma from attending multiple sentencing hearings" for other offenders, Trumbull-Harris wrote. Federal law mandates a minimum sentence of five years in prison for Ontiveros at sentencing, which is scheduled for Jan. 14. Truitt argues in a sentencing memorandum filed last week that Van Bokkelen should hand Ontiveros the minimum, a term that would fall below advisory sentencing guidelines, to be followed by five years of mental health treatment.

Some related recent federal child porn prosecution and sentencing posts:

January 4, 2010 in Criminal Sentences Alternatives, Sex Offender Sentencing, Victims' Rights At Sentencing | Permalink | Comments (4) | TrackBack

Notable new study about juve sex offenders

Today's USA Today includes this notable article, headlined "Study: Third of juvenile sex offenders target other kids." Here is how it starts:

More than a third of sex crimes against juveniles are committed by juveniles, according to new research commissioned by the Justice Department. Juveniles are 36% of all sex offenders who victimize children. Seven out of eight are at least 12 years old, and 93% are boys, says the study by the Crimes Against Children Research Center at the University of New Hampshire.

The report comes as states toughen penalties for adult sex offenders and wrestle with how to handle juveniles. "They are different from adult sex offenders," says study co-author David Finkelhor. They are more likely than adults to commit sex offenses in groups, and their victims are younger and more likely to be male.

Finkelhor says only about 10% of juvenile offenders have signs of "sexual preoccupation," an indicator of a pedophile. He says teen offenses include date rape. In the case of offenders age 12 or 13, it is often sexual experimentation with younger kids. Early sex education is key to teaching boundaries and preventing such experimentation, Finkelhor says.

The study, based on 2004 law enforcement data, finds that juvenile sex offenders commonly target children younger than they are. Their numbers increase sharply at age 12 and plateau at 14. Female offenders are younger.

January 4, 2010 in Offender Characteristics, Sex Offender Sentencing | Permalink | Comments (1) | TrackBack

January 3, 2010

"A year for more executions"

The title of this post is is the headline of this new Washington Post editorial.  Here are excerpts:

Virginia was one of 11 states that put an inmate to death in 2009.  The state executed three prisoners, including D.C.-area sniper John Allen Muhammad, contributing to the first spike in executions since 2005.  Nationwide, 52 prisoners were put to death in 2009, up 41 percent from the 37 executed during 2008....

[T]he continued reliance on this unnecessary and barbaric punishment is regrettable, especially because of the continued risk that innocent men and women could be put to death.  Indeed, nine inmates who had spent years on death row were fully exonerated in 2009, thanks in large part to the increasing use and sophistication of DNA evidence.

Perhaps because of the nationwide drop in the murder rate or perhaps because of the risk of wrongful execution and the exorbitant costs associated with prosecuting capital cases, fewer death sentences were handed down this year, according to a report by the Death Penalty Information Center....

While the number of death row inmates in the federal system increased to 58 -- three times the number that existed at the beginning of the Bush administration -- the size of the death row population in the states continued to drop and stood at 3,279.  More than 1,400 such inmates are held in California, Florida and Texas.

New Mexico took the commendable step of abolishing capital punishment in the state.  Sadly, Maryland lawmakers debated such a step but failed to garner the votes for passage.  Instead, they passed legislation that authorizes the death penalty only in cases where DNA or videotaped evidence corroborates guilt.  This toughening of the standards is welcome, but lawmakers should not abandon the quest to erase the death penalty from the state's books.

Yesterday, I complimented the Post for an editorial that usefully asked why violent crime rates keep falling.  But today I must assail the same editorial board for not even considering the possibility that the death penalty could be playing a positive role in our society becoming more safe.  (It is also telling and annoying that this editorial takes a swipe at the Bush administration even though the Clinton administration was most responsible for bringing the federal death penalty back to life and for limiting federal habeas rights of death row defendants.)

More broadly, I find it comical that this editorial calls the death penalty an "unnecessary and barbaric punishment" right after noting that Virginia in 2009 executed mass murderer John Allen Muhammad.   Muhammad's killing spree was surely unnecessary and barbaric, but his execution could readily be viewed as necessary and even humane.  Muhammad's continued existence tormented his ex-wife and surely some of the many victims of his mass murder; his death was likely necessary to bring at least a small measure of cathartic relief to the communities in which he caused great suffering.  He was executed using a protocol that seeks to avoid all pain after a fair trial and multiple appeals, and he humanely had nearly a decade longer than his victims to prepare for his death. 

As for "the continued risk that innocent men and women could be put to death," don't Maryland's 2009reforms showcase that this risk always being diminished?   Of course, in Muhammad's case, there was no risk that innocent person was put to death, even though Muhammad himself killed many innocent men and women.

I continue to have great respect for people who express their passionate beliefs that the death penalty is immoral.  But calling the death penalty an "unnecessary and barbaric punishment" is stating a debatable conclusion, not making a reasoned argument.  I remain troubled and disappointed that modern discussion of the death penalty remains dominated by partisan dogma rather than reasoned debate.

January 3, 2010 in Death Penalty Reforms | Permalink | Comments (22) | TrackBack

What is "the most violent city per capita in America"?

Click here to find out.  The article linked provides these explanations for why the city wins this unfortunate honor:

“Our 30-year crime history is appalling,” said [local] Prosecutor Michael D. Thomas.... “You can’t do more with less.”  Thomas identified reductions in police, more lenient state sentencing guidelines and a disproportionately low number of prosecutors in [this] County versus similar cities as key factors in [its] crime rate....

Law enforcement is key to protecting the public, Thomas said.  But even if the court system had the resources to fully prosecute all criminals, legislators still sometimes render impotent the system’s potential to enact justice.

“Our sentencing guidelines tie some of our judge’s hands behind their backs,” he said, removing the judge’s leeway in imposing a sentence and often resulting in shorter sentence benefiting the convict. Thomas said first-offense felons go to prison less than 10 percent of the time in [the state]. Based on the number of parolees Thomas’s office prosecutes, many convicts are released from prison early, Thomas said.

I will provide a hint (and perhaps stir up some controversy) by noting that the state in which this city resides does not have the death penalty.

January 3, 2010 in Death Penalty Reforms, Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack