March 12, 2010
"Judging Cruelty"The title of this post is the title of this new and notable Eighth Amendment piece from Meghan Ryan that is now available via SSRN. Here is te abstract:
The wisdom of the death penalty has recently come under attack in a number of states. This raises the question of whether states’ retreat from the death penalty, or other punishments, will pressure other states — either politically or constitutionally — to similarly abandon the punishment. Politically, states may succumb to the trend of jettisoning a penalty. Constitutionally, states may be forced to surrender the penalty if the punishment is considered cruel, and, as a result of a large number of states renouncing the penalty, the punishment also becomes unusual. If a punishment is thus found to be both cruel and unusual, it will be proscribed under the Eighth Amendment Punishments Clause of the U.S. Constitution.
Considering the disappearance of some punishments and emergence of new punishments, whether a punishment is cruel under the Punishments Clause is an important question. Curiously, there has been very little discussion of what constitutes a cruel punishment, as distinguished from whether a punishment is also unusual. This Article examines the concept of cruelty as enshrined in the Eighth Amendment Punishments Clause and suggests that the Supreme Court ought to focus on this elusive concept through its independent judgment analysis. The Article emphasizes that such an independent judgment focus on cruelty should be constrained by specific, identified factors and that these factors should go beyond examining the penological purposes of punishment. The Article asserts that motive and the nature and quality of a punishment are central to the concept of cruelty and suggests that a more nuanced understanding of punishment rationales, supplemented by factors focused on elements such as the bloody or lingering nature of the punishment, is necessary in properly determining whether a punishment is cruel under the Punishments Clause.
Fifth Circuit flags, but dodges, circuit split over advisory guidelines and ex post facto issuesThough decided last month, the Fifth Circuit just revised and re-released an interesting little decision, US v. Castillo-Estevez, No. 09-40096 (5th Cir. Feb. 9, 2010) (available here), which discusses one of my "favorite" unresolved post-Booker sentencing issues. Here is the heart of the ruling:
In United States v. Rodarte-Vasquez, 488 F.3d 316 (5th Cir. 2007) (Jones, C.J., concurring), it was observed that the now-advisory guidelines should not raise ex post facto concerns because “the sentence imposed by the court need not be harsher under later guidelines than it would have been under the guidelines in effect when the offense was committed.” Rodarte-Vasquez, 488 F.3d at 325. The Seventh Circuit adopted this view of the guidelines post-Booker in United States v. Demaree, 459 F.3d 791 (7th Cir. 2006), holding that the Ex Post Facto Clause does not apply to sentencing guidelines amendments because it applies “only to laws and regulations that bind rather than advise.” Id. at 794. See also United States v. Barton, 455 F.3d 649, 655 n.4 (6th Cir. 2006) (“When the Guidelines were mandatory, defendants faced the very real prospect of enhanced sentences caused by changes in the Guidelines . . . that occurred after they had committed their crimes. Now that the Guidelines are advisory, the Guidelines calculation provides no such guarantee of an increased sentence . . . . As such, the Ex Post Facto Clause itself is not implicated.”). But cf. United States v. Turner, 548 F.3d 1094, 1099–1100 (D.C. Cir. 2008) (rejecting the Seventh Circuit’s reasoning in Demaree); United States v. Larabee, 436 F.3d 890, 894 (8th Cir. 2006) (stating post-Booker that “‘retrospective application of the Guidelines implicates the ex post facto clause’”).
We need not determine here whether ex post facto claims arising from the application of evolving sentencing guidelines are viable after Booker. Even if the district court’s application of the 2008 guidelines violated the ex post facto clause, the error would certainly not be “plain” in light of such post-Booker cases as Rodarte-Vasquez, Demaree, and Barton. To be “plain,” legal error must be “clear or obvious, rather than subject to reasonable dispute.” Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).... Because the caselaw reveals a “reasonable dispute” regarding the ex post facto implications of retroactive application of the advisory guidelines, the district court’s error, if any, was not plain.
I continue to be surprised no only by the fact that the ex post facto issue remains unresolved five years after the Bookerdecision, but also by the fact that it seems to be so rarely litigated or even addressed. My sense is that most districts and circuit continue to operate as if ex post facto issues still limit the application of revised guidelines, though I have always been instinctually drawn to the reasoning of Rodarte-Vasquez, Demaree, and Barton.
Notable new ACLU suit against private prison in IdahoThanks to TalkLeft, I saw this notable press release from the ACLU, which is titled "ACLU Lawsuit Charges Idaho Prison Officials Promote Rampant Violence." Here is how the release starts:
The American Civil Liberties Union and the ACLU of Idaho today filed a class action federal lawsuit charging that officials at the Idaho Correctional Center (ICC) promote and facilitate a culture of rampant violence that has led to carnage and suffering among prisoners at the state-owned facility operated by the for-profit company Corrections Corporation of America (CCA).
Filed in the U.S. District Court for the District of Idaho, the lawsuit charges that epidemic violence at the facility is the direct result of, among other things, ICC officials turning a blind eye to the brutality, a prison culture that relies on the degradation, humiliation and subjugation of prisoners, a failure to discipline guards who intentionally arrange assaults and a reliance on violence as a management tool.
"In my 39 years of suing prisons and jails, I have never confronted a more disgraceful, revolting and inexcusable case of mass abuse and federal rights violations than this one," said Stephen Pevar, a senior staff attorney for the ACLU. "The level of unnecessary human suffering is appalling. Prison officials have utterly failed to uphold their constitutional obligation to protect prisoners from being violently harmed and we must seek court intervention."
The 81-page complaint in this case is available at this link.
"Michigan board reverses parole for sex offender"The title of this post is the headline of this article from the Toledo Blade, which might have also been reasonably headlined "Chelsea King case has echo effect." Here are the basics:
The Michigan parole board has reversed the decision to grant parole to convicted sex offender Rex Layman, a former Lambertville man who was convicted in 1998 of child rape, the Monroe County Prosecutor's office said Wednesday. The full 15-member Parole and Commutation Board took unprecedented action to review Layman's scheduled release after objections were filed by Prosecutor William Nichols.
"We are pleased that the parole board took a second look at this, reversed the decision, and found that he is dangerous to society and a threat to public safety. We believe the public is safer without him on the streets," said Michael Brown, an assistant county prosecutor.
Layman, 61, has served nearly 12 years of the 8 to 30 year prison sentenced he received for sexually abusing two 8-year-old girls in 1997. A three-member panel of the state parole board granted parole release to Layman after reviewing his case last August. Mr. Brown said the parole board ordered that Layman should remained locked up for 24 months.
Accused murderer of Chelsea King avoided going back to prison after 2007 parole violationsThis new Los Angeles Times article, which is headlined "Sex offender violated parole but wasn't sent back to prison," reports on the latest controversy in a high-profile murder case:
The sex offender charged with murdering Chelsea King violated parole in 2007 by living near a school, but state officials opted against sending him back to prison because he complied with orders to relocate, according to a summary released Thursday by the California Department of Corrections and Rehabilitation.
John Albert Gardner III was barred from residing within a half-mile of an elementary school when his parole officer found him living near a college's day-care center in San Diego County in September 2007.
Gardner moved within two weeks, according to state officials, and avoided a parole hearing process that could have landed him back in prison. He was on parole after serving a five-year sentence for molesting a 13-year-old girl in 2000.
The department's handling of Gardner has come under scrutiny since it was disclosed that officials destroyed his parole file under a policy that has since been reversed by Gov. Arnold Schwarzenegger.
The new disclosures fueled more criticism, with some politicians and victims' rights groups saying that state officials missed an opportunity to keep Gardner from committing more crimes.
Gardner had several potential parole violations, the summary said. He missed a parole meeting, was suspected of marijuana use and had four low-battery alerts from the global positioning system strapped to his body. All were considered minor.
"If we were to return to custody individuals with these types of infractions, the system would not be able to take it," said Oscar Hidalgo, a department spokesman. "We would flood our agents and our parole offices with technical violations that we couldn't sustain. The system itself couldn't sustain it."
Important and worrisome new multivariate analysis from USSC of post-Booker sentencing patternsI am pleased to see that the US Sentencing Commission has released this potent and important new sentencing data analysis, which is titled "Demographic Differences in Federal Sentencing Practices: An Update of the Booker Report’s Multivariate Analysis." I am not pleased (though also not especially surprised) about what that analysis reveals about some post-Booker sentencing trends. Specifically, according to this new USSC report:
This report focused on three separate time periods which together spanned the time between May 1, 2003, and September 30, 2009. The Commission found a correlation between the length of sentences imposed on some groups of offenders and the demographic characteristics of those offenders. These differences were not present in all time periods under study and differed in magnitude in the time periods in which they were observed....
Based on this analysis, and after controlling for a variety of factors relevant to sentencing, the following observations can be made:
Black male offenders received longer sentences than white male offenders. The differences in sentence length have increased steadily since Booker.
Female offenders of all races received shorter sentences than male offenders. The differences in sentence length fluctuated at different rates in the time periods studied for white females, black females, Hispanic females, and “other” female offenders (such as those of Native American, Alaskan Native, and Asian or Pacific Islander origin).
Non-citizen offenders received longer sentences than offenders who were U.S. citizens. The differences in sentence length have increased steadily since Booker.
Offenders with some college education received shorter sentences than offenders with no college education. The differences in sentence length have remained relatively stable across the time periods studied.
The data were inconsistent as to the association between an offender’s age and the length of sentence imposed.
Any serious student of the history of prosecutorial and judicial sentencing discretion knows that with any increase in discretion power will come some increase in disparate outcomes and the risk that disparities are influenced by non-legal factors that we might wish would not (but always does) influence how imperfect humans exercise their discretion. These realities always demand careful assessment and sober reflection, but they also always demand a careful reaction and sober consideration of what remedies are possible and what remedies might prove worse than the disease.
Though I will need to review this new report and its data closely before developing a detailing reaction to these findings, I will start by suggesting that my own anecdotal post-Bookerexperiences suggest that economic realities and the disparate efforts of prosecutors and defense counsel may account for worrisome disparities more than the determinations of sentencing judges. I fear there my be some systematic and structural biases, often influenced by socio-economic realities, that can result in prosecutors charging and bargaining a bit harder on certain types of offenders and that can result in defense counsel developing better mitigating arguments for certain types of offenders.
March 11, 2010
More details on the Monica Conyers case (and its future?)The Detroit Free Press has this effective report on the past, present and possible future of the criminal case against Monica Conyers (background here). The piece is headlined "A fuming Monica Conyers seeks appeal: Experts say she may not have right." Here is how the piece sets up the fascinating question now at the center of the case:
Although defendants often are allowed to appeal rulings, there is a question if that applies to Conyers in this case because she signed a plea agreement as part of her admission of guilt on June 22 that indicates if the sentence imposed falls at 60 months or less, "defendant waives any right to appeal her conviction or sentence."
Alan Gershel, a 28-year veteran of the U.S. Attorney's Office who is now a professor at the Thomas M. Cooley Law School, said Conyers' signature on the plea agreement effectively stymies an appeal. "Essentially, the government is saying you get what you bargain for, and there really is no right for appeal," he said.
Helpfully, this article also provides links to what these notable legal documents from the case:
I have long thought that a strong argument could be made that certain broad appeal waivers, at least in some settings, should be set aside as void as against public policy. But, as I said in this prior post, because the Sixth Circuit has often been quite willing and eager to enforce appeal waivers, I suspect Conyers will have an uphill battle trying to get even her day in appeals court.
Varied reactions to the crack/powder reform work of the Senate Judiciary Committee
I have seen or received lots of distinct commentary in reaction to Senate Judiciary Committee's unanimous vote today to reduce (but not eliminate) crack/powder disparity in federal mandatory sentencing statutes (reported here). Here is a sampling:
From the Office of Senator Jeff Sessions, here is part of this press release titled "Sessions, Hatch Commend Bipartisan Compromise on Drug Sentencing":
U.S. Senator Jeff Sessions (R-AL), Ranking Member of the Senate Judiciary Committee, today joined with Sen. Orrin Hatch (R-UT) in commending the unanimous committee approval of a bipartisan compromise bill to address the disparity in the sentencing penalties between crack and powder cocaine...
Sessions said, “This is an important bipartisan compromise and I especially want to thank Chairman Leahy, Senator Hatch, and Senator Durbin for their efforts. I have long believed that we need to bring greater balance and fairness to our drug sentencing laws. But I have also maintained that a guiding principle of that effort must be that we not place any obstacles in front of the police officers and prosecutors fighting every day to keep our communities and their residents safe. Through this change in the thresholds for mandatory minimum sentences, we will be able to achieve needed fairness without impeding our ability to combat drug violence and protect victims. These reforms strengthen our justice system and I hope the full Senate will consider and act on this proposal.”
From the US Department of Justice, here is the full text of this statement from Attorney General Eric Holder:
"There is no law enforcement or sentencing rationale for the current disparity between crack and cocaine powder offenses, and I have strongly supported eliminating it to ensure our sentencing laws are tough, predictable and fair.
"The bill voted unanimously out of the Senate Judiciary Committee today makes progress toward achieving a more just sentencing policy while maintaining the necessary law enforcement tools to appropriately punish violent and dangerous drug traffickers.
"I applaud the work of the Senate Judiciary Committee, particularly Chairman Leahy, Ranking Member Sessions and Senators Durbin and Graham, in taking such an important step toward reforming our sentencing laws. I look forward to the Senate and the House approving this legislation quickly so that it can be signed into law."
From the blog TalkLeft, here is part of this postfrom Jeralyn titled "Judiciary Committee Waters Down Crack-Powder Cocaine Sentencing Bill":
The 100:1 ratio and mandatory minimum sentences will not be eliminated, but reduced to 20:1. In other words, no equalization. Crack cocaine will continue to carry a penalty 20 times more severe than powder cocaine. Is it an improvement? Yes. Is it good enough? No....
There's more bad stuff in the bill as introduced -- it reeks of Joe Biden-type influences -- increased sentencing guidelines for some drug crimes through application of aggravating factors.
The bill we needed was Bobby Scott's H.R. 3245 which passed the House Judiciary Committee in July. It would have eliminated the "100 to 1" disparity by removing the word "crack cocaine" in the criminal code.
Instead, we get another crime bill with increased penalties and no equalization. Again, while the reduction is an improvement, the bill is a big disappointment.
And last but not least, from lawyer Gary G. Becker, who sent me this passionate e-mail not long after hearing the news:
The Senate Judiciary Committee’s vote to “reduce” the crack cocaine/powder cocaine punishment disparity from 100:1 to 20:1 is a scandalous, racist, and politically motivated act. In view of the near-unanimous consensus that there is no justifiable basis for punishing crack cocaine more harshly than powder cocaine, and that the 100:1 ratio was both arbitrary and irrational – even DOJ called for elimination of the disparity -- the Senate Judiciary Committee settles on an equally unsupportable, irrational, and arbitrary punishment scheme, one that will disproportionately affect minorities, destroy families, and promote disrespect for the law.
March 11, 2010 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, New USSC crack guidelines and report, Race, Class, and Gender, Who Sentences? | Permalink | Comments (9) | TrackBack
Latest FSR issue on federal alternatives to incarceration now available on-line
I am pleased to report that the latest issue of the Federal Sentencing Reporter is now available on-line, bearing the title "Decreasing Incarceration in the Federal System: Alternative Sanctions, Diversion, and Other Models." The Table of Connects for this latest FSR issue can be accessed at this link, and the full issue and/or a full subscription to the Federal Sentencing Reporter can be ordered on-line here.)
This timely FSR issue on sentencing alternatives was put together by FSR editor Nora Demleitner. And the title of her Editor’s Observations, which are available here, captures some of the spirit and themes of the whole issue: "Replacing Incarceration: The Need for Dramatic Change." The issue is filled with a variety of provocative ideas about how such a change might be engineered in the federal system.
Other recent FSR issues:
- FSR Issue 21.5: Fast Track Sentencing
- FSR Issue 21.4: On the Shoulders of Giants
- FSR Issue 21.3: "Second Look" Sentencing Reforms
- FSR Issue 21.2: Sex Offenders: Recent Developments in Punishment and Management
- FSR Issue 21.1: Thoughts for the U.S. Sentencing Commission
- FSR Issue 20.5: American Criminal Justice Policy in a "Change" Election
- FSR Issue 20.4: Debates and Realities Surrounding Crack Retroactivity
- FSR Issue 20.3: White-Collar Sentencing
- FSR Issue 20.2: Prisoner Reentry
"Rethinking Crime — Again"The title of this post is the headline of this fantastic new commentary on crime and punishment from John J. Di Iulio, Jr. appearing in the journal Democracy. The piece is a must-read for anyone interesting in crime realities and punishment policies, and it includes a final big section recommending "Six Steps to Zero Prison Growth" that include getting rid of mandatory minimum sentencing terms and considering marijuana legalization. And here is how the piece concludes:
America has long experienced unacceptable levels of crime, including predatory violence by and against our youth and young adults. And there is no denying that, 16 years into a national crime drop, the levels remain unacceptable in absolute terms and higher than they were in the early 1960s. But there are better ways to measure crime and better ways to meet that half-century-old crime challenge. After growing at an average annual rate of 6.5 percent during the 1990s, the prison population has grown at an average annual rate of 1.8 percent since 2000.
But prison populations need not grow at all over the next decade if Washington policymakers act soon to usher in more humane and cost-effective crime policies. Americans need not continue to purchase such safety as they enjoy by forsaking freedom for themselves and depriving it to others. We can instead reclaim for ourselves, for our children and grandchildren, and for the children and families of prisoners and ex-prisoners, such lost social and civic luxuries as unlocked front doors, lone late-night walks wherever you please, and everyday life lived among friends and fellow citizens in real American communities. Call the new federal crime bill "The Zero Prison Growth, Youth Violence Prevention, and Compassionate Drug Policy Act of 2010." And let the next, and best, crime drop in modern American history begin.
Latest federal sentencing data show continuing slow migration away from guidelines
The US Sentencing Commission has some fresh new sentencing data just up on its website. The USSC's latest data report, which can be accessed here, is described this way:
Final FY09 Quarterly Sentencing Update: An extensive set of tables and charts presenting the final cumulative fiscal year quarterly data on cases sentenced in fiscal year 2009. The report also provides an analysis of sentencing trends over five years for several key sentencing practices. (Published March 11, 2010)
The new data continue to show remarkable stability in the operation and application of the advisory federal guideline sentencing system, with a continuing slow migration away from the guidelines due to slight increases in prosecutor-initiated and judge-initiated non-guideline sentences. Specifically, these data show that for FY09, approximately 57% of all federal sentences are within the calculated guidelines range, with prosecutors sponsoring a below-range sentence in more than 25% of all cases, and with judges ordering an above-guideline sentencing in 2% of all cases and initiation a below-guideline sentence in nearly 16% of all cases.
Not long after the 2008 election, I speculated here that ground-level sentencing trends might show the imprint of a new administration before there were any formal legal and policy developments. Interestingly, these latest numbers continue the trend of a very slow, but not seemingly steady, migration away from guideline ranges. But, in general terms, these data still show only gradual evolutions, not any obvious revolutions, in federal sentencing practices and outcomes at the district court level
Spot-on commentary at C&C about legislative action on the death penaltyOver at Crime & Consequences, Kent Scheidegger has this notable and astute new post titled "Death Penalty Legislation." Here is how it begins:
What a difference a year makes. There are three news stories about death penalty legislation in my Google Alerts email this morning, and all three are about state legislatures considering expanding their death penalty laws....
So what's going on here? Has public opinion on the death penalty shifted dramatically from last year, when repeals and contractions were on the table, to this year, when expansion is on the table in multiple states? No. Polls consistently report that support has been steady. The difference is that political tides have changed for unrelated reasons, producing a shift in which legislators feel confident of reelection and which feel uneasy.
Unanimous(!!) vote by Senate Judiciary Committee to reduce (but not eliminate) crack/powder disparityAs detailed in this new press release from Families Against Mandatory Minimums, this morning "the U.S. Senate Judiciary Committee unanimously passed a bill that would reduce the sentencing disparity between federal crack and powder cocaine offenses." Here are the basic details, with a pitch-perfect first-cut reaction from the head of FAMM:
The bipartisan vote to approve an amended version of Senator Richard Durbin’s (D-Ill.) bill, S. 1789, acknowledging that disparate sentencing policies enacted for federal crack cocaine offenses in 1986 have had a negative impact on the nation’s criminal justice system.
The amended bill would reduce the ratio between crack and powder cocaine from 100:1 to 20:1 and direct the U.S. Sentencing Commission to enhance penalties for aggravating factors like violence or bribery of a law enforcement officer. Significantly, the bill also would eliminate the mandatory minimum sentence for simple possession of crack.
“This is an exciting vote, but also disappointing. We hoped the Committee would go further in making crack penalties the same as powder. There was no scientific basis for the 100:1 disparity between crack and powder cocaine created 24 years ago, and there is no scientific basis for today’s vote of 20:1 ,” said FAMM President Julie Stewart. “However, if this imperfect bill becomes law, it will provide some long-overdue relief to thousands of defendants sentenced each year.
With regard to the bill’s provision that would eliminate the mandatory sentence for simple possession of crack, Ms. Stewart stated, “If enacted, this legislation would repeal a mandatory minimum law for the first time since the Nixon administration.”
Under the Senate’s proposed 20:1 ratio, a conviction for 28 grams of crack cocaine will trigger a five year prison sentence and for 280 grams of crack a 10 year sentence. The 20:1 ratio could affect an estimated 3,100 cases annually, reducing sentences by an average of about 30 months. The bill would not, however, reduce sentences for those currently incarcerated for crack offenses. Impact of the amendment’s other provisions has not yet been calculated.
Especially at a time when getting agreement on anything in Washington DC seems like a pipe-dream, the fact that the Senate Judiciary Committee voted unanimously to reduce crack sentences is a remarkable and very important development (and turning point?) in the ever dynamic story of modern federal sentencing.
Especially given that the full Senate and the House still has to accept this imperfect "solution" to the crack/powder problem, I am not yet prepared to count any sentencing reform chickens. But the fact the unanimous vote suggests that lots of important folks have already bought into this particular solution. Thus, I think there is now a real chance that 2010 will finally be the year we get some change to the notorious 100:1 ratio in crack/powder mandatory minimums.
"How Young Is Too Young to Face Life in Prison?"The title of this post is the headline of this new effective piece from ABC News and Good Morning America. Here is how it starts:
The father of a 12-year-old Pennsylvania boy charged last year with murder says his son is "just an all-around good kid" who doesn't deserve to face life in prison.
A judge will soon decide whether or not Jordan Brown should be tried as an adult for the murder of his soon-to-be stepmother, and face a possible life sentence. The case is at the crux of a national debate on juvenile justice, playing out in a small-town courthouse.
Before his arrest, Jordan was the quarterback of the Pee Wee football team and a good student. His dad says he was "big into sports" with "a lot of friends in school."
But on Feb. 20, 2009, his father's fiancée, Kenzie Houk, 26, was found dead, shot in the head in the family's rural farmhouse in Western Pennsylvania. She was eight-and-a-half months pregnant at the time.
Prosecutors quickly built a case against Jordan, then 11, accusing him of using his shotgun -- a hunting gift from his dad -- to fire one fatal bullet before getting on the bus for elementary school. Within 24 hours, the fifth-grader was arrested for murder. When Chris Brown saw his son being taken away by police, the boy was "scared, frightened, [and] crying."
"Jordan's never been away from me for any length of time since he was born," he recalled thinking. "He was terrified, terrified." Brown said his son "looked like a baby" when he was incarcerated. "He looked like a baby in an orange jumpsuit in an adult jail."
Brown continues to proclaim his son's innocence. But the family of Houk has reportedly described Jordan as angry and profoundly jealous of the fact that the new woman in his father's life was about to have a son, to be named Chris after his dad. Jordan was charged with two counts of homicide. Chris Brown believes his son comprehends what he stands accused of, "but he doesn't appreciate the magnitude of it. He's simply too young."
Too young, many argue, to face the prospect of an adult sentence. Kids charged with murder in Pennsylvania are automatically considered adults and only a judge's decision can move the trial to junvenile court.
If convicted, the two routes have radically different sentences, either life in prison without parole, or juvenile detention and freedom with no record at age 21. Due to tough-on-crime laws, Pennsylvania has more juveniles sentenced to life in prison without parole than any other state.
March 10, 2010
Monica Conyers gets 37-month federal sentence (and creates some great appeal issues)This Detroit News piece, which is headlined "Angry Conyers vows to appeal 37-month prison sentence," suggests a high-profile federal sentencing today a political bribery case includes some interesting in-court action. Here are the highlights:
Former Detroit City Councilwoman Monica Conyers was sentenced to 37 months in prison today, but not before controversy and confusion erupted when she announced she wanted to withdraw her guilty plea to bribery.
In a loud and lengthy tirade that targeted federal prosecutors and the news media, Conyers said the court was trying to make an example of her and sentence her for crimes she did not commit. "I'm not going to be made the scapegoat for other people," Conyers told U.S. District Judge Avern Cohn. "I'm sorry that the newspapers have put pressure on you to make an example of me."
"I'm just not going to jail for something I didn't do."
Conyers' shock announcement -- "I want to withdraw my guilty plea" -- created uncertainty whether her sentencing would go ahead as a courtroom packed with media, relatives, supporters and others waited, as did a large crowd in the corridor that had been turned away from the courtroom.
But Cohn, who read aloud a transcript from Conyers' plea hearing in June, said he believed her plea was made knowingly and he would not allow her to withdraw it at what Assistant U.S. Attorney Mark Chutkow called "the 11th hour."
An angry Conyers left the courtroom vowing to appeal. "I'm walking out the front door and I'm appealing this case because he didn't have no right to do that," Conyers said.
But it's not clear whether she can. Her plea agreement said she waived her appeal rights provided Cohn did not sentence her to more than five years in prison, which is the maximum sentence for bribery conspiracy.
Cohn said she does not have to report to prison before July 1. After her prison term, she is to serve two years of supervised release, he said.
Conyers' Detroit attorney, Steve Fishman, asked to withdraw from the case immediately after the sentencing hearing, saying Conyers may have appeal rights and he could be a witness at any appeal. "This case is over for me," Fishman said....
Part of the controversy over the attempted plea withdrawal stemmed from Cohn's comments that he would consider other "relevant conduct" such as alleged shakedowns of a strip club, a technology company and a real estate developer with matters before the City Council or the General Retirement System, where Conyers sat as a trustee.
Those alleged acts involved more than $60,000 in illegal payments and increased Conyers' sentencing guidelines -- which are advisory only -- from 30-37 months to 46-57 months, Cohn said. Those allegations were detailed at the recent corruption trial of political consultant Sam Riddle, a former top aide to Conyers accused of working with her to shake down businesses. Riddle's trial ended in a mistrial in February.
Conyers protested vehemently, saying she denied all the allegations, and Cohn relented, saying he would not consider the other conduct and would leave Conyers' sentencing guidelines at 30-37 months.
But that did not dissuade Conyers from wanting to withdraw her guilty plea. "Everything Sam has done he has done on his own," she said....
It was disclosed for the first time today that Conyers has attempted to cooperate with government prosecutors. According to Cohn, prosecutors said they are still checking out information she gave them but so far do not feel it is valuable enough to warrant a recommendation for a reduced sentence.
"If I have to go the jail for what I've done, I'd love that," she told Cohn. "But I'll talk to my family and I don't want to go to jail for things I didn't do."
Conyers told the judge he had received a report from a doctor the judge sent her to, which revealed she was vulnerable to badgering.
"You had me go to see a doctor," Conyers told the judge. "She talked about why I pleaded guilty ... I think that is the basis for withdrawing my plea."
These developments are truly fascinating, and the array of potential interesting appellate issues raised by just the facts in this news report is making head swim. That said, because the Sixth Circuit has often seemed willing and eager to enforce appeal waivers, I fear Conyers may have an uphill battle trying to get even a day in appeals court.
I hope Conyers can/will bring on a top-flight appellate team if she really wants to try to undo her (Blakely-esque?) sentencing fate. Depending on the exact terms of the plea agreement and the peculiar happenings in the district court, some super lawyers might be able to at least crack open the appellate courtroom door for Conyers in the Sixth Circuit. And, whatever the specifics and the legal issues pursued (or not pursued) by Conyers, this high-profile case is worthy of continued attention.
Marion Jones adds another notable reentry story to the sports pagesI enjoy following the post-sentencing fates of celebrity felons because they provide a great example of the willingness of society to give persons who can generate revenue a second chance. Thus, I was intrigued and pleased to see this AP story in the afternoon news, which is headlined "Marion Jones signs with WNBA's Tulsa Shock." Here are the basics:
Marion Jones hasn't lost much of her swagger. The disgraced sprinter once called the world's fastest woman was introduced Wednesday as the newest member of the WNBA's Tulsa Shock and she offered no apologies for her steroids use or her time in federal prison. She was poised and ready for questions about her troubled past.
"The word redemption is not in my vocabulary," Jones said at a news conference, flanked by team president Steve Swetoha and coach Nolan Richardson. "I'm a competitor, I want to play against the best in the world, and I know that I will be doing that."
Her bid for a new career comes a decade after she starred at the Sydney Olympics, winning gold in the 100 meters, 200 meters and 1,600-meter relay, and bronze in the long jump and 400-meter relay. She was stripped of all five medals after admitting in 2007 that she was using performance-enhancing drugs -- a designer steroid called the "clear" -- at the time of the games.
Jones also spent about six months in a Texas prison for lying to federal prosecutors about doping and her role in a check-fraud scam. The 34-year-old Jones joined the team just four days after working out for Richardson, who is also the team's general manager. She was signed to at least a one-year contract but terms were not disclosed.
Jones was the starting point guard on North Carolina's national championship team in 1994 and she was drafted by Phoenix in 2003 but never played in the WNBA. She said playing for the Shock is not about her past but instead fulfills her dream of playing basketball against the best players in the world....
WNBA president Donna Orender, who attended the news conference, said Jones generates interest in the league because she's a highly accomplished athlete who has competed on a global stage. "This is a tremendous, real-life story of a person who made a choice that was not a wise choice, but is saying listen, 'I'm going to be a role model, I'm going to showcase what I'm going to do with the rest of my life,'" Orender told The Associated Press. "I join the rest of America in wanting to watch this story unfold."
Martha Stewart and Michael Vick are two of my favorite celebrity federal felon reentry stories, but now it looks like I should add Marion Jones to the list of reentry success.
Lots of notable new sentencing notes in the Notre Dame Law ReviewThe Notre Dame Law Review will always have an extra warm stop in my professional heart because it published my first big sentencing piece about departures over a decade ago. Now, thanks to a helpful reader, I have now leared that the February 2010 issue of the NDLR includes this trio of notable law review notes that look worth a look:
- The Use of Sentencing Findings as a Collateral Estoppel Weapon in Subsequent Civil Litigation (by Jonathan Scott Baker at 85 Notre Dame L. Rev. 713)
- The Unwelcome Cohort: When the Sentencing Judge Invades Your Bedroom (by Elizabeth M. Bux at 85 Notre Dame L. Rev. 745)
- Double Take: Evaluating Double Jeopardy Reform (by Kenneth G. Coffin at 85 Notre Dame L. Rev. 771)
Though all three of these pieces look like worthwhile reading, I am especially excited to learn that it has been sentencing judges (and not monsters) hiding under my bed all these years.
Are there First Amendment problems with barring sex offenders from social media sites?The question in the title of this post is prompted by this piece from the journalism students at Northwestern University’s Medill school. The piece is headlined "New law banning sex offenders from social networks a free speech flop?", and here is how it starts:
Peter Chapman, a 33-year-old convicted rapist, was jailed for life Monday in England for killing Ashleigh Hall, 17, in October. Chapman lured the teenager by putting up a phony Facebook profile posing as a teenage boy.
Illinois passed a law that took effect Jan 1. to target internet predators like Chapman. The law makes it a felony for registered sex offenders to use social networking. “Predators are real and dangerous,” said Rep. Darlene Senger, a co-sponsor of the public act. “In order to become a registered sex offender, you’re not just taking a picture of someone, you’re doing something criminal.”
Senger gave the example of a 42-year-old sex offender who tried to target a 14-year-old Naperville girl by posing as a teenage boy on Facebook. The girl’s mother was suspicious and alerted law enforcement, which thwarted their potential meeting.
However, the law treads on free speech rights if the crimes that got the offenders in trouble were not clearly related to social media, said David Hudson, a First Amendment scholar who teaches at Vanderbilt University.
There is a risk of the law going overboard and seriously violating the First Amendment if it applied to all sex offenders, Hudson said. “It restricts a whole range of media and [offenders] could be using social networking as a medium to communicate to family and friends,” he said.
Texas judge reconsidering declaration that state's death penalty is unconstitutional
This new AP piece, which is headlined "Texas judge rescinds anti-death penalty ruling," provides the latest news concerning a Texas capital case that has cause quite a stir after a notable ruling by a state judge last week. Here are the details:
A Texas judge criticized for declaring the death penalty unconstitutional took back his controversial ruling Tuesday but scheduled a hearing for next month to hear evidence on the issue.
State District Judge Kevin Fine said he wants more information before making a final decision about whether the state's death penalty statute allows for the possible execution of an innocent person. Fine is a judge in Harris County, which sends more inmates to death row than any other county in the nation.
During a court hearing Tuesday, Fine rescinded the ruling he made last week in granting a pretrial motion in the capital murder case of John Edward Green Jr., accused of fatally shooting a Houston woman and wounding her sister during a June 2008 robbery. Green's attorneys argued Texas' death penalty statute violates their client's right to due process of law under the 5th Amendment because hundreds of innocent people nationwide have been convicted, sent to death row and later exonerated.
Fine took back his ruling but asked Harris County prosecutors and defense attorneys to submit motions on the due process issue by April 12. Fine will then have an evidentiary hearing April 27, when testimony on whether innocent people have been executed in Texas is set to be presented.
Casey Keirnan, one of Green's defense attorneys, said the case is "headed in the exact direction we want it to go." "This is the very first legal proceeding where a court is going to look into the issue as to whether or not we have executed innocent people in Texas," Keirnan said. "It's now taken on a life I've never dreamed it would. It's so amazing to me."
Keirnan said he and co-counsel Robert Loper still are determining whom they might call to testify at next month's hearing. But he said it might include officials connected to the case of Cameron Todd Willingham, whose 2004 execution for the deaths of his three daughters in a 1991 house fire near Corsicana is now being questioned.
Prosecutor Kari Allen was pleased Fine rescinded his order. "However, it is unfortunate that we will not be able to proceed more quickly with the actual trial of the case," she said.
March 9, 2010
Former CBS producer pleads guilty to trying to extort David Letterman
The Letterman extortion case has now become a sentencing matter as the defendant in the case has now entered a plea. This New York Times report provides the basic details:
Saying that he felt “great remorse for what I have done,” a former CBS producer pleaded guilty on Tuesday to trying to extort $2 million from David Letterman by threatening to reveal details about affairs that Mr. Letterman had with members of his staff, including a former companion of the producer.
In exchange for pleading guilty to second-degree attempted grand larceny, the former producer, Robert Joel Halderman, will receive a six-month jail sentence, after which he must serve four and a half years of probation. Mr. Halderman must also perform 1,000 hours of community service. A more serious charge of first-degree attempted grand larceny, which carries a maximum 15-year term, was dropped as part of the plea agreement.
Mr. Halderman, 52, is to be formally sentenced and go to jail on May 4. With good behavior, he could be released in about four months. “We raised some novel legal issues, novel defenses,” his lawyer, Gerald L. Shargel, said by telephone after the court proceeding. “I couldn’t be at all certain that they would prevail. Weighing the risks against the rewards, I thought this was an opportunity to make the best of a bad mess.”
Outside the courthouse, one of Mr. Letterman’s lawyers read a statement from him thanking the Manhattan district attorney’s office. “When they became involved with this case, I had complete faith that a just and appropriate result was inevitable,” Mr. Letterman said in the statement. “On behalf of my family, I am extremely grateful for their tireless efforts.”
Daniel J. Horwitz, one of his lawyers, added: “This is a serious sentence that properly reflects the crime he now admits he committed. And it brings this case to a fitting end.”
Mr. Halderman, an Emmy Award-winning producer for CBS News, was arrested on Oct. 1, after trying to deposit a fake $2 million check from a lawyer for Mr. Letterman in a sting operation set up by the district attorney’s office. Sitting before Justice Charles Solomon of State Supreme Court in Manhattan, Mr. Halderman said in a calm tone, “I attempted to extort $2 million from David Letterman by threatening to disclose personal and private information about him, whether true or false.”...
As part of the nine-page plea agreement, Mr. Halderman also agreed to turn over to the district attorney’s office any material he had about Mr. Letterman’s personal life, like letters, pictures and diary or journal entries. Mr. Halderman is forbidden from discussing any of the materials or knowledge he had about Mr. Letterman’s personal life.
The plea offer that Mr. Halderman accepted came about within the past two weeks, Mr. Shargel said. “Mr. Letterman is a public figure, but like all New Yorkers, he has a right to a certain degree of privacy in his personal life,” Cyrus R. Vance Jr., the Manhattan district attorney, said in a statement. “I commend Mr. Letterman for making the difficult but unquestionably right decision to report this crime to my office.”
I would be eager to hear if folks think that justice was served by a six-month jail sentence, four and a half years of probation, and 1,000 hours of community service in this high-profile case.