Sentencing Law and Policy

"Restitution for Child Pornography Victims"

The title of this post is the headline given to this local public radio show on an interesting cutting-edge topic which I have covered at some on this blog.  Here is the set up:

Traditionally, courts have punished those convicted of possessing child pornography with heavy jail time. But in a growing trend, victims are demanding that offenders pay restitution too. The approach is generating debate about how far courts can go in punishing people who are caught with pornography, but aren't the direct perpetrators of the crime.

Guests:

Ernie Allen, President and Chief Executive Officer of the National Center for Missing & Exploited Children and the International Centre for Missing & Exploited Children

Steve Kelly, Attorney with the Maryland law firm Miles & Stockbridge and Commissioner on the Maryland Criminal Injuries Compensation Board

Jonathan Turley, Professor of Public Interest Law at George Washington University; practicing defense attorney

Some related recent federal child porn prosecution and sentencing posts:

• Effective new opinion discussing restitution in federal child porn possession cases
• Another thoughtful and notable district court opinion on restitution in child porn sentencing
• The latest (beneficial?) litigation front in child porn downloading battles
• Federal judge imposes large restitution punishment for downloading child porn
• Second Circuit blesses future medical expense restitution in child porn sentencing
• Federal sentence for receiving child porn includes forfeiture of home
• Strong sentencing opinion noting disparities in federal child porn downloading cases
• Yet another notable written opinion in a federal child porn downloading case
• More examples of sentencing uncertainty surrounding federal child porn cases
• "Prosecutors seek nearly $200k for child porn victim"

Exactly how many months qualifies as a "substantial" prison sentence?

The question in the title of this post is prompted by this high-profile federal sentencing storycoming out Detroit, which carries the headline "Conyers should serve 'substantial' prison time, prosecutors say," in the Detroit News.  Here are the basics:

Federal prosecutors say former Detroit City Councilwoman Monica Conyers should receive a "substantial" prison sentence when she appears Wednesday before a federal judge in Detroit.

In a sentencing memorandum unsealed today, federal prosecutors don't specify how much prison time they think Conyers should get.  But they say her sentencing guidelines would be in the range of 46-57 months if she was held accountable not just for the bribes she admitted taking in connection with a city sewage sludge contract, but for $69,500 in payments she and her former chief of staff, Sam Riddle, received from various business people with matters before the Detroit City Council or the city pension fund.

Sentencing guidelines are advisory only. U.S. District Judge Avern Cohn is to sentence Conyers.... Conyers pleaded guilty last June to taking at least $6,000 in bribes in connection with the $1.2 billion contract the Detroit City Council awarded to Synagro Technologies Inc. of Texas in 2007, with Conyers casting the deciding vote.

Conyers' attorney, Steve Fishman, has said he will argue Conyers should not go to prison.

By my subjective sentencing compass, I consider roughly 12 to 18 month as the over/under on what constitutes a "substantial" prison sentence in this context.  By being forced to spend more than a year in prison, an offender is going to be behind bars for at least one of ALL the holidays and birthdays and seasons and sporting events and other personal and external markers that most of us use to frame and define our life experiences. 

But I suspect that in this case and in many others involving white-collar offenders, prosecutors and perhaps others would view any sentence readily measure in months rather than in years to be insubstantial.  And, in this case, it will be Judge Cohn's sentencing compass who ultimately determines just how many major life event Monica Conyers gets to experience while incarcerated.

Tenth Circuit questions illegal reentry guideline while rejecting substantive unreasonableness claim

A helpful reader helped ensure I did not miss the interesting little reasonableness ruling by a Tenth Circuit panel yesterday in US v. Chavez-Suarez, No. 09-1005 (10th Cir. Mar. 8, 2010) (available here). The start of the main opinion in Chavez-Suarez provides a flavor for the issues that the case raises:

In this criminal appeal, Defendant Margarito Chavez-Suarez challenges the substantive reasonableness of his sentence. Defendant pled guilty to illegally reentering the country following deportation after a conviction for a drugtrafficking offense.  This drug-trafficking offense — a 1997 state court conviction for the attempted distribution of marijuana — resulted in a sixteen-level enhancement to the offense level calculated under the advisory sentencing guidelines.  Based on this enhancement, the advisory guideline range was calculated at forty-one to fifty-one months of imprisonment.  Although the probation officer recommended granting Defendant’s request for a variance below this guideline range, the district court ultimately imposed a forty-one month sentence.  This appeal followed.

On appeal, Defendant challenges only the substantive reasonableness of the sentence imposed, arguing that this sentence was unreasonably long in light of the age of the underlying drug-trafficking conviction, his essentially clear conduct prior to and following that conviction, and the relatively benign nature of his attempted distribution of marijuana in comparison to the other offenses that trigger the sixteen-level enhancement.  Defendant notes that, following his 1997 conviction, his only contact with the police was for driving without insurance.

Indeed, he was only discovered to be in the United States illegally in 2008 because he complied with traffic laws by remaining at the scene of an accident that had been caused by another driver.  Defendant argues that the record shows he was deterred from drug trafficking by an eighteen month sentence (from which he was released after nine months), and he asserts that this demonstrates that he would likewise be deterred from illegal reentry by a relatively short sentence.  Defendant further notes other offenses triggering a sixteen-level enhancement under the guidelines include terrorism, rape, murder, child pornography, and human trafficking, and he argues his attempted distribution of marijuana should not be subject to the same enhancement as these crimes.  He also notes that the district court found certain mitigating factors relating to his personal characteristics.  In light of all of these circumstances, Defendant argues, the district court abused its discretion by refusing to vary below the applicable guidelines range.

As this introduction suggests, the Tenth Circuit panel here is clearly sympathetic to the defendant's arguments that the guidelines for illegal reentry applicable to him are problematic.  But, while the opinion stresses that a downward variance may have been warranted in this case, it ultimately concludes that the district court did not abuse its discretion by opting not to grant such a variance.

"State doesn't let condemned man kill himself"

The title of this post is the headline of this article from the Columbus Dispatch, which updates how the state of Ohio is dealing with a condemned murderers suicide attempt just before his scheduled execution:

Inmate Lawrence Reynolds' decision to attempt death on his terms before the state could execute him left Ohio officials with a dilemma. Save him or let him die?

Reynolds, 43, who was to be lethally injected at 10 a.m. today, got a one-week reprieve yesterday as he regained consciousness in a Youngstown hospital after an apparent suicide attempt late Sunday. The Akron man now has until next Tuesday to recover from the overdose before the state injects him with a dose of thiopental sodium, a powerful anesthetic that will most likely kill him within minutes.

The state will pay for Reynolds' medical treatment until he can be returned to Death Row at the Ohio State Penitentiary in Youngstown, where he was housed, or to the Southern Ohio Correctional Facility near Lucasville, where executions take place.

Reynolds was convicted and sentenced to death for the Jan. 11, 1994, murder of Loretta Foster, 64, his neighbor in Akron. Reynolds tried to rape the woman before strangling her and beating her with a tent pole. He later took friends back to the house to see her body.

Many Dispatch.com readers who commented on the story yesterday seemed to agree with this reaction: "We were gonna kill him anyways, why not just let him ... die from the overdose?"

Julie Walburn, spokeswoman for the Ohio Department of Rehabilitation and Correction, said the state has two legal obligations. "We have a constitutional duty to provide health care for this inmate until the execution commences. And we are legally responsible to carry out executions under the law. We will meet both our legal obligations."

Walburn said a full investigation is being conducted into how Reynolds, while on Death Row at the state's maximum-security prison, obtained drugs sufficient to cause an overdose.

"Companies 'Named And Shamed' For Bad Behavior"

The title of this post is the headline of this effective NPR piece discussing shaming sanctions in a distinct setting.  Here is how the piece starts:

Newspapers are full of apologies these days, from Toyota to Tiger Woods. But papers in the Boston area are also running a growing number of "mea culpas" that are ordered by the courts. Increasingly, companies that plead guilty to crimes that harm the community — polluting, for example — are being required to publish an apology as part of their punishment.

New ACS issue brief making the case against juve LWOP

I just got word of this new issue brief from the folks at the American Constitution Society, which is titled "A Just Alternative to Sentencing Youth to Life in Prison Without the Possibility of Parole." This piece is authored by Jody Kent and Beth Colgan, and here is how ACS summarizes the work:

This Issue Brief is particularly timely in light of the Supreme Court’s consideration of the constitutionality of juvenile life sentences without the possibility of parole in two cases, Sullivan v. Florida and Graham v. Florida.  Ms. Kent and Ms. Colgan examine why, in their opinion, such sentencing practices represent deeply flawed public policy.  As the authors explain:

"Regardless of whether the Court extends [its precedent acknowledging that juveniles are different from adults] to find the sentencing of youth to life in prison without the possibility of parole unconstitutional, advocates for youth have called for reform of extreme sentencing policies, on the basis that they grossly undermine rational, fair, and age-appropriate treatment of youth."

Ms. Kent and Ms. Colgan discuss the well-established principle that youth are different from adults, and explain how this principle is reinforced by adolescent brain development research. The authors address and dismiss arguments that harsh sentencing is necessary to protect public safety, as well as highlight troubling racial disparities and inconsistent sentencing application.  In addition, they describe how such sentencing functions to undermine the United States’s moral standing, given that the United States is the only country in the world to sentence offenders under the age of eighteen to life without parole.  Finally, the Issue Brief concludes with Ms. Kent and Ms. Colgan proposing an alternative to the practice of sentencing youth to life in prison without the possibility of parole --- creation of a system allowing periodic review of sentences to determine whether individuals continue to pose a threat to society or may be returned to communities as productive citizens.  In the view of the authors, this approach balances the need to hold young offenders accountable, while still recognizing their inherent capacity for change and growth.

Ohio gets a new problem on its way toward a one-drug lethal injection

If Ohio official were hoping that their switch to a one-drug lethal injection protocol would end all the challenging issues with execution, the next inmate for the death chamber has reminded us all that state killing is never easy.  Specifically, as detailed in this new AP piece, which is headlined "Execution Near, Inmate Found Unconscious," condemned murderer Lawrence Reynolds has presented a new kind of problem for Ohio.  Here are the basics:

Prison officials in Ohio say an inmate scheduled to be executed Tuesday has been found unconscious in prison.  Prisons spokeswoman Julie Walburn says Lawrence Reynolds Jr. was found unconscious about 11:30 p.m. Sunday at the Ohio State Penitentiary in Youngstown.

Walburn says it appears Reynolds injured himself and that authorities are investigating a possible attempted overdose of pills. She did not know what kind.

Reynolds is hospitalized in serious condition. Walburn says the state has a constitutional duty to care for Reynolds. It was unclear Monday whether his execution would go forward.

Another criminal defendant win produces another notable SCOTUS alignment

As detailed here at SCOTUSblog, the Supreme Court issued two opinions and granted certain on three new cases this morning, but it is not obvious that this activity includes much for sentencing fans to get to excited about.  That said, there was a criminal justice ruling today in the issued opinion, and here is how Lyle Denniston reports the event:

Bloate v. United States (08-728), in which the lower court is reversed and remanded.  Justice Thomas writes for the Court, with a vote of 7-2.  Justice Ginsburg joins the opinion but files a separate concurrence.  Justice Alito dissents, joined by Justice Breyer.  The time granted to prepare pretrial motions is not automatically excluded from the 70-day limit under the Speedy Trial Act of 1974.  The opinion is here.

Because I do not keep up on speedy trial law, I am not sure if Bloate is a big deal on the merits.  I am sure that it is notable and interesting that Justice Thomas is the author of a ruling that is a win for a criminal defendant, and that only Justices Alito and Breyer are drawn to the pro-government ruling of the Eighth Circuit that gets reversed in this case.

Can and should business leaders be effective advocates for sentencing and prison reforms?

The question in this title of this post is inspired by this new editorial from the Detroit Free Press, which is headlined "Business joins fight to right-size prisons." Here are excerpts:

Business leaders have taken a lead role in efforts to reform Michigan's oversized prison system. Legislators should pay attention.

Lansing can't resolve its long-term budget crisis without right-sizing the Department of Corrections.  Nor can a state that spends more on prisons than higher education compete in a 21st Century economy.

The Detroit Regional Chamber deserves credit for creating a detailed plan to reduce corrections costs as part of an overall effort to restructure state government.  For the first time, the Chamber will devote a session on prison issues and spending at this year's Mackinac Policy Conference.

The Chamber supports bills reinstating good-time credits, and it has recommended reconstituting the state Parole Board into a body of professional civil servants, as well as examining sentencing guidelines and expanding prisoner re-entry programs.

The Chamber's Sarah Hubbard said business groups got interested in corrections in 2007, when the state imposed significant tax increases, while reports showed Michigan's incarceration rates were far higher than surrounding states, costing the general fund an added $500 million a year.  With a prison population of nearly 50,000, Michigan spends $2 billion a year on corrections, more than 20% of its general fund.

Republican legislators have spoken eloquently about the need to restructure government and create a leaner, more efficient state bureaucracy.  Still, many continue to defend criminal justice policies that have multiplied costs more than fivefold over the last three decades, with no commensurate reduction in crime....

Three years ago, Rich Studley, vice president of the Michigan Chamber of Commerce, asked: "Why is it that Michigan, compared to other states, puts more people in prison for longer periods of time for no difference in crime rates or recidivism?" It's a question Michigan's clear-eyed business leaders continue to ask, and legislators can no longer afford to shrug their shoulders in response.

I am eager to echo this editorial's astute assertion that the Detroit Regional Chamber "deserves credit for creating a detailed plan to reduce corrections costs as part of an overall effort to restructure state government."  Indeed, I hope other regional business groups, as well as national organizations concerned about both the size of government and effective use of government resources, will begin to appreciate that there may be a real link between costly and often ineffectual corrections spending and some modern economic woes.

"Confessions of a Sentencing Judge"

The title of this post is the headline of this notable new commentary by former federal Judge H. Lee Sarokin just posted at The Huffington Post. Here are excerpts:

There is no worse nightmare for a judge than learning that a criminal defendant whose charges you have dismissed, or who you have released on bail or probation, or who has completed a term of incarceration which you imposed, has committed a serious crime.  Fortunately, I never had that experience, but I certainly worried about it constantly.  When it appears that a woman may have been raped and murdered by a known sex offender who was within the justice system, the family and the public's outrage is palpable and certainly understandable, as in the case of Chelsea King....

[S]entencing is far from a science.  One of the reasons sentencing guidelines were enacted was to reduce as much a possible the discrepancy based solely upon the predisposition of the sentencing judge -- the tough sentencer v. the lenient sentencer.  A sentence should not depend on which courtroom a defendant walks into.  But the biography, the sentencing guidelines, the penalty standards based upon the crime committed, do not spew out a uniform sentence.  A judge on sentencing day hears the arguments of counsel for and against incarceration and frequently statements of remorse from the defendant; sees the anger and hatred from the victim and/or the victim's family; observes the parents, wife and children (many brought to the courtroom as infants) of the defendant, reads of the public's cries for vengeance and punishment and the personal letters begging for leniency and attesting to the good character and good works of the defendant.  We also think about rehabilitation and deterrence, although I understand that rehabilitation of sex offenders is unlikely, and we have no way of knowing whether the risk of punishment has any effect.

We are not God, but we play God in these moments.  The understandable public reaction in cases such as Chelsea King is to execute, forever incarcerate or medically disable persons who are likely to re-commit such terrible acts.  Balancing the need to protect the public within the limits imposed by the law and the Constitution is an awesome task for a judge.  We hope we get it right and avoid the horrific tragedy of families like those of Chelsea King, but sometimes we fail in that undertaking despite our best efforts or because of limits imposed by the law.

A new federal statutory attack on Missouri's lethal injection protocol

Over at Capital Defense Weekly is this notable new post headlined "Under the radar lethal injection challenge appears to be heading to trial." Here is the substance:

In news of the next possible wave of challenges to lethal injection, Ringo v. Lombardi, Case No. 09-4095-CV-C-NKL, a federal district court judge in the Western District of Missouri on Tuesday  denied a motion to dismiss in a challenge to that state’s lethal injection statute.  The suit uses a new avenue to challenge lethal injection, “a declaratory judgment that Missouri’s lethal injection protocol violates the Food, Drug and Cosmetic Act, 21 U.S.C. §§ 801, et seq. (“FDCA”), as well as the Controlled Substances Act, 21 U.S.C. §§ 301, et seq. (“CSA”).”   Mark this one as one to watch.

An astute reader who noted this blog post for me added this pitch-perfect comment: "Like the Baze-type litigation, [this statutory attack] could turn into a new avenue for challenging the mechanics of lethal injection.  It could also hasten states to adopt of a one-drug protocol."

"Supreme Court should uphold local, state regulation of guns"

The title of this post is the headline of this editorial from my hometown Columbus Dispatch in this morning's paper.  Because the Dispatch has a relatively conservative editorial board (it endorsed McCain and Bush in the last two presidential elections), I found both the position and the rhetoric of this editorial notable.  Here are snippets:

A highly restrictive law such as Chicago's and Oak Park's would be unnecessary in many other locales, such as small towns, rural areas and anyplace where gun violence is a rare occurrence. But Oak Park sits next door to Chicago's highly urbanized suburbs and neighborhoods and absorbs their spillover criminal activity.  Chicago is engaged in a major campaign to reduce the violence and, in high-crime areas, has installed sophisticated cameras that can detect gunshots, turn rapidly to capture the scene at that site and alert police.

Neither Chicago nor Oak Park bans possession of shotguns and other recreational firearms that are not handguns; these cities are not engaged in a plot to take all guns away from law-abiding citizens.

Unfortunately, the Supreme Court's conservative majority appears unlikely to step away from its activist interpretation of the Second Amendment as an individual right to own guns for self-defense and hunting....

The Supreme Court's 2008 decision also overturned Washington's requirement that firearms have trigger locks or be kept disassembled.  This is particularly disturbing, because many cities and states have similar laws to prevent accidental firing and misuse of guns, especially by children.

Anyone who says conservative justices are not activists should look carefully at this earlier decision and consider the impending ruling in the Chicago and Oak Park cases.  How do the justices of the nation's highest court presume to know what local ordinances are best for maintaining law and order on the streets of America's highly diverse cities?

Some recent related posts on McDonald Second Amendment incorporation case:

• Could there be five votes for only "partial" incorporation of the Second Amendment?
• "A gun case or Pandora's box?: Ruling could trigger the unhinging of American culture"
• Should criminal justice reform groups actively urge SCOTUS to overrule The Slaughterhouse Cases?
• Seeking help working though the Second Amendment amicus briefs filed in McDonald
• What is the best argument that Heller should only impact the feds? Will it get any votes?
• What state and local issues will be litigated the most if (when?) Heller is incorporated?
• State AGs and the Second Amendment incorporation debate
• Should (and will) SCOTUS discuss standards of review for the Second Amendment when deciding incorporation?