May 11, 2010
Notable new note on the CVRA and victims of financial fraudThanks to this post at CO, I see that the May 2010 issue of the Minnesota Law Review has this interesting new student note on the ways lower courts are stuggling with aspects of the Crime Victims' Rights Act. The note is by Julie Kaster and is titled "The Voices of Victims: Debating the Appropriate Role of Fraud Victim Allocution Under the Crime Victims' Rights Act." Here is the abstract:
The economic collapse of 2008 witnessed the greatest explosion of financial fraud cases in recent memory. The Crime Victims’ Rights Acts (CVRA), a federal statute granting victims rights in court, gives victims of financial swindlers a day in court to recount their financial hardships—a process known as victim allocution. The CVRA also gives victims the ability to petition for a writ of mandamus if the district court fails to respect the right of allocution. Victims’ rights to allocution are not absolute, however, as the CVRA grants the court the ability to fashion “reasonable procedures” to limit victim allocution. Circuit courts divide over the standard of review that appellate courts should use when reviewing mandamus petitions on issues such as victim allocution. This stark division highlights an underlying tension in the criminal justice system and requires probing analysis into the benefits of allocution, the constitutional protections for the defendant, and the scarce judicial resources of the court. This Note urges Congress to amend the CVRA to empower district courts to limit victim allocution and subject that decision only to the traditionally high standard of mandamus review on appeal.
Anyone note anything notable (or dealing with criminal justice) in the Kagan converage?
Over at all the biggest law blog spots like How Appealing and SCOTUSblog and The Volokh Conspiracy have more links and analysis concerning President Obama's nomination of SG Elena Kagan for the Supreme Court than any human could possibly process. Based on a brief scan of the coverage and commentary, I have yet to see any new or unanticipated issues raised in conjunction with her nomination. Even more importantly for this space, I have yet to see a single story focused on Kagan and the standard criminal justice issues (as opposed to "war on terror" issues) that comprise a large part of the SCOTUS docket.
The question in the title of this post is my bleg to readers to help me keep an eye out for any especially interesting or blog-worthy stories about Kagan and/or about the views she might have on SCOTUS-significant criminal justice issues ranging from the death penalty to the Second Amendment to Apprendi and Blakley and Booker and Crawford. As has been the recent modern tendency with SCOTUS nominations, I expect and fear that important real-world criminal justice issues will take a back seat to many other issues that play better on talk radio in the discussion over SG Kagan.
Some recent related posts on the Kagan nomination:
- "Elena Kagan Will Be Obama's Supreme Court Pick: Mike Allen"
- Early thoughts and questions about SCOTUS nominee Elena Kagan
- Any thoughts as to who will or should replace Elena Kagan as Solicitor General?
UPDATE: I just noticed in a comment thread to a prior post that an anonymous commentor going by the label "Law faculty factory fellow" has spotlighted this intriguing NYTimes op-ed by David Brooks about SG Kagan, which is headlined "What It Takes." The anonymous commentor adds this comment before the link: "Organization Kids: Kagan and Prof. Berman both fit the mold pretty well." Candidly, I am not sure whether to be flattered or insulted, and thus I will opt for feeling flattered to be named in the company of the woman very likely to be our newest (and youngest) Supreme Court Justice.
"For Crime, Is Anatomy Destiny?"The question in the title of this post is the headline of this interesting new piece from the New York Times. Here are excerpts:
Poverty, greed, anger, jealousy, pride, revenge. These are the usual suspects when it comes to discussing the causes of crime. In recent years, however, economists have started to investigate a different explanation for criminal activity: physical attributes.
A small band of economists has been studying how height, weight and beauty affect the likelihood of committing — or being convicted of — a crime. Looking at records from the 19th, 20th and 21st centuries, they have found evidence that shorter men are 20 to 30 percent more likely to end up in prison than their taller counterparts, and that obesity and physical attractiveness are linked to crime.
“The profession has developed a large interest in biology,” what some refer to as anthropometric economics or history, said Gregory N. Price, an economist at Morehouse College and one of the authors of a paper on height and crime....
Linking physical traits to criminality may sound like a throwback to the biological determinism advocated by 19th-century social Darwinists who believed that there was a genetic predisposition for wrongdoing. Practitioners are quick to distance themselves from such ideas.
Mr. Price, for example, argues that crime can be viewed, at least partly, as an “alternative labor market.” If individuals with certain physical attributes are disadvantaged in the labor force, they may find crime more attractive, he said....
A link between a physical attribute and salary, or crime, does not necessarily mean cause and effect... [as] Howard Bodenhorn, an economist at Clemson University, and Mr. Price [found] from 19th-century prison records. In that era increased body weight was associated with a lower risk of crime. In the 21st century, though, in which service jobs are much more common, Mr. Price found that being overweight was linked to a higher risk of crime....
Mr. Price has suggested that there may be policy implications in his work, saying, “Public health policies successful at reducing obesity among individuals in the population will not only make society healthier, but also safer.”
I wonder if folks on the left have considered, relying on this research connecting crime and physical attributes, promoting health care reform as a public safety necessity. Conversely, I wonder if folks on the right have considered, relying on this research connecting crime and physical attributes, complaining that any new tax on cosmetic surgery could make us less safe. And perhaps we academics need to start worrying about police forces using this research to justify engaging in aesthetic profiling.
Getting a little more serious, based on the title of this article, I am a bit troubled that the piece fails even to mention the fact that sexual anatomy certainy seems to be directly connected to crime in the sense that men are consistently and predictably more likely to commit crimes and to commit serious crimes than women. As I have noted in prior posts, the important basic statistical link between gender and crime is, in my view, too rarely noted or stressed in discussions of crime and punishment.
Some related prior posts on gender and crime issues:
- Data bleg on gender, crime, victims and punishment
- How could more female offenders impact the reality and perception of sex offender sentencing?
- "Race and Gender as Explicit Sentencing Factors"
- Is gender bias in capital punishment a serious problem?
Major reasonableness ruling from Second Circuit in child porn downloading caseThe Second Circuit handed down this morning a must-read panel opinion in US v. Dorvee, No. 09-0648 (2d Cir. May 11, 2010) (available here), which a helpful reader described to me as "arguably the most significant one decided by any lower federal court since Booker." I am not sure I think the the Dorvee ruling is quite that huge, in part because the "child porn downloading" context may limit its broader significance within and outside the Second Circuit. Nevertheless, as these passages from the start and end of the opinion highlight, Dorvee is very important for lots and lots of reasons:
Justin K. Dorvee pled guilty to one count of distribution of child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A). He was sentenced by the United States District Court for the Northern District of New York (McAvoy, J.) to the statutory maximum of 240 months, less 194 days for time served for a related state sentence. He challenges both the procedural and substantive reasonableness of his sentence. Our review of the record indicates that the district court may have improperly calculated Dorvee’s Guidelines range which, we conclude, constitutes procedural error. We also conclude that the sentence imposed on Dorvee is substantively unreasonable. We therefore vacate the judgment and remand to the district court for resentencing....
District judges are encouraged to take seriously the broad discretion they possess in fashioning sentences under § 2G2.2 – ones that can range from non-custodial sentences to the statutory maximum – bearing in mind that they are dealing with an eccentric Guideline of highly unusual provenance which, unless carefully applied, can easily generate unreasonable results. While we recognize that enforcing federal prohibitions on child pornography is of the utmost importance, it would be manifestly unjust to let Dorvee’s sentence stand. We conclude that Dorvee’s sentence was substantively unreasonable and, accordingly, must be revisited by the district court on remand.
Once I have a chance to read the full Dorvee opinion closely, I will have a lot more to say about its likely import and impact. For now, it is already interesting to speculate whether the Government might be moved to seek en banc or even cert review of this ruling.
May 10, 2010
Notable Eleventh Circuit ruling on a new media criminal justice issueThough not principally a sentencing case, a new opinion today from the Eleventh Circuit addresses a new media issue that is arising more and more frequently in sentencing settings. The ruling in US v. Phaknikone, No. 09-1008 (11th Cir. May 10, 2010) (available here), gets started this way:
The main issue presented in this appeal is whether the district court abused its discretion by admitting the profile page, subscriber report, and photographs from the MySpace.com account of Souksakhone Phaknikone to prove that he committed a string of bank robberies “like a gangster.” Fed. R. Evid. 404(b). Phaknikone appeals his fifteen convictions of armed bank robbery, 18 U.S.C. § 2113(a), (d), carrying a firearm in relation to a crime of violence, id. § 924(c), and possession of a firearm by a convicted felon, id. § 922(g)(1), and his sentence of 2,005 months of imprisonment for those convictions. Phaknikone argues that the district court abused its discretion by admitting the MySpace evidence because it was offered to prove that he acted in conformity with his bad character. We agree, but in the light of the overwhelming evidence of Phaknikone’s guilt, the error was harmless. We also reject Phaknikone’s remaining arguments that the district court abused its discretion in its answer to a question of the jury; that section 922(g)(1) violates the Commerce Clause; that the district court misinterpreted section 924(c); and that his sentence is unreasonable. We affirm Phaknikone’s convictions and sentence.
Any thoughts as to who will or should replace Elena Kagan as Solicitor General?
In addition to thinking about how the SCOTUS confirmation hearing for SG Kagan are likely to play out, my thoughts today keep wandering toward who might get to be the next Solicitor General.
In part because they are both friends and both criminal justice gurus, I keep thinking about current deputy SG Neal Katyal (of Hamden fame) and Stanford law prof Jeff Fisher (of Blakely and Crawford fame). I would be thrilled if either was the next SG, but I have absolutely no insider knowledge about their prospects and no sense of whether either would be good politics. Still, for my own parochial reasons, I am going to call them the front-runners until someone tells me otherwise.
Another scheduled Ohio execution, another novel complaint about execution protocol by condemned
As detailed in this local story, which is headlined "Death Row inmate files new injection argument," Ohio's now-standard monthy execution plans has been met with another Ohio inmate's now-standard novel execution challenge. Here are the details:
An Ohio inmate facing execution this week says his tolerance to a lethal injection drug could lead to a painful execution that would deprive him of his constitutional rights. Michael Beuke, 48, scheduled to die Thursday for fatally shooting a man while hitchhiking in 1983, made his claim in a court filing Friday.
Beuke asked U.S. District Judge Gregory Frost to stop the execution because it could deny him the quick and painless death promised by Ohio law and could constitute cruel and unusual punishment in violation of the Constitution. Beuke said a barbiturate he takes for a seizure disorder could limit the effectiveness of midazolam, the first drug called for in Ohio's backup execution method.
It's a twist on a similar argument made last month by another Ohio Death Row inmate who said he had an allergy to anesthesia. The federal courts rejected Darryl Durr's claim, and he was executed April 20.
I will be quite surprised if Beuke's (twisted?) argument has any more success than Durr's, and thus I fully expect Ohio this week to complete its sixth (one-drug lethal injection) execution in as many months.
Some recent related posts:
- Might Ohio keep pace with Texas in the number of executions in 2010?
- "Ohio inmate to get 1-drug, slower, execution"
- Reports on Ohio's success with one-drug lethal injection protocol
- A few early questions following Ohio's successful one-drug lethal injection execution
- Ohio completes another successful one-drug lethal injection execution
- Shouldn't we celebrate condemn's request that he "would like the firing squad, please"?
- California legislator urging state to adopt one-drug execution protocol being used by Ohio
Early thoughts and questions about SCOTUS nominee Elena Kagan
As detailed via many links at How Appealing, it is soon to be official that President Obama will nominate former Harvard Law School Dean and current Solicitor General Elena Kagan to replace retiring SCOTUS Justice John Paul Stevens. Here are my first thoughts and questions in response to this nomination.
As a matter of biology and biography, I am very pleased with the choice. For my daughters' sake, I had hoped President Obama would add more women to the Supreme Court, and I am very excited that the Court will likely soon have three female Justices for the first time ever.
In addition, for substantive law reasons, I think younger is better for SCOTUS these days. Lots of new technology issues are likely better understood by a Justice who knows her way around a computer, and thus SG Kagan's relative youth is a plus.
Relatedly, I cannot help but like seeing yet another Princetonian and HLS grad added to the Court. This has to be good for my alma maters, both of which I love and respect greatly. And, as regular readers know, I have long been hoping for a Justice without judicial experience. Plus, to have a new Justice with academic inclinations certainly feels like a plus to me.
Finally, Kagan is largely a blank slate on criminal justice issues, though she likely got a bit of a crash course on some federal criminal justice matters in her relatively short stint as SG. I think this blank slate state is a good thing for the Court's future sentencing jurisprudence, but this is most speculation. And speaking of speculation, here are some follow-up questions for readers:
1. What can/should we take away from the work of the SG's office under Kagan's leadership?
2. Who is likely to replace Kagan as SG?
3. What will be the first major criminal justice case on which Kagan has a decisive vote?
UPDATE: The President's official introduction of his nominee this morning stressed both biology and biography (including the biographies of SG Kagan's grandparents and parents and siblings). And, interestingly, while President Obama noted Kagan's ability to bring conservatives to HLS as Dean, new SCOTUS nominee Kagan stressed her time serving bosses Mikva, Marshall, Clinton and Obama that should signal to the left that their heroes made a habit of hiring Kagan for critically important professional roles.
In addition, to throw in one last point on biology, I must not my pleasure with the prospect of having another Justice who is shorter than me (which is not easy).
Will the continued drop in crime rates help Democrats deflect the usual "soft-on-crime" attack?This post's question about the usual crime, punishment and politics dialogue is inspired by this intriguing article in today's Washington Post, which is headlined "Drop in crime might be a boost for O'Malley." Here is how the piece starts:
Maryland Gov. Martin O'Malley is scheduled to announce Monday that the state recorded fewer violent crimes last year than at any point since 1979 and that the overall number of crimes dipped to an all-time low since Maryland police began uniformly reporting them more than 35 years ago.
By another key measure -- the likelihood that a resident will fall victim to murder, rape, robbery or violent assault -- Maryland is expected to drop out of the nation's 10 most dangerous states for the first time in more than two decades.
Maryland's improving public safety record stands out even amid a national phenomenon of falling crime rates, including a precipitous drop last year in the number of homicides across the greater Washington region.
The good news comes at an opportune time for O'Malley: at the outset of his reelection campaign. Over the coming months, O'Malley (D), who won the governor's mansion in part on a reputation as Baltimore's tough-on-crime mayor, is expected to reclaim the mantle of crime fighter.
But with crime rates falling fast nationwide, assessing how much credit O'Malley deserves for Maryland's record lows remains a tough task. Recent high-profile crimes, including the killing of an 11-year-old Eastern Shore girl in December that exposed major gaps in the state's supervision of sex predators and the slaying in February of a teacher at a state-run juvenile detention facility in Prince George's County, have provided entry points for O'Malley's challenger, former governor Robert L. Ehrlich Jr. (R), to question the state's progress.
During this year's General Assembly session, Ehrlich criticized O'Malley and the state's Democratic-controlled legislature for failing to more quickly tighten sex-offender rules. Last week, Ehrlich accused O'Malley and powerful Democrats opposed to capital punishment of "shenanigans" to circumvent the state's death penalty laws, effectively maintaining a de facto moratorium on executions for Maryland's five death-row inmates.
In an interview Saturday, O'Malley said he was looking forward to making the case that his administration's award-winning tactics aimed at cracking down on violent repeat offenders, tightening parole and probation standards, targeting at-risk youths and clearing the state's backlog of unanalyzed DNA samples have made Marylanders safer.
Recent related post:
- Notable (and justified?) attack by old Maryland governor on current governor concerning death penalty
May 9, 2010
"Rethinking Recidivist Enhancements: The Role of Prior Drug Convictions in Federal Sentencing"The title of this post is the title of this important new article by Sarah Russell just published in the UC Davis Law Review. The article analyzes recidivist enhancements based on prior drug convictions from a policy perspective, and also introduces an approach for challenging the application of these enhancements using the Supreme Court's decision in Shepard. Here is the abstract:
Recidivist sentencing enhancements, which increase criminal sentences for defendants with prior convictions, are a prominent feature of the federal criminal justice system. This Article considers the policy rationales supporting recidivist enhancements and reexamines them in light of two recent Supreme Court cases, United States v. Booker and Shepard v. United States. Recidivist enhancements are traditionally justified based on rationales of retribution, deterrence, and incapacitation; proponents justify recidivist enhancements on the theory that people who reoffend are more culpable and more likely to recidivate. There is considerable doubt, however, regarding whether these rationales support the expansive federal enhancements currently tied to prior drug convictions.
The Supreme Court’s decisions in Booker and Shepard, which provide judges with additional sentencing discretion, allow judges to reexamine these rationales in the cases before them. Booker rendered the sentencing guidelines advisory, and judges may now decline to apply guidelines enhancements on policy grounds. Shepard limits the types of evidence that a judge may consider in determining whether a prior state conviction triggers a federal sentencing enhancement and allows judges to avoid applying statutory and guideline enhancements in many cases. Innovative Shepard litigation in the District of Connecticut has recently led to a marked reduction in the number of enhancements based on drug convictions applied by judges in the District. Judges nationwide can apply this Shepard analysis. Although rigorous application of Shepard increases sentencing discretion and may lead to more just and effective sentences in individual cases, Shepard can also create sentencing disparities for similarly situated defendants. Under Shepard, the application of an enhancement may depend solely on factors such as the availability of court transcripts or whether the defendant’s state conviction precisely matches the language of a federal enhancement. Given the potential for unwarranted disparities — and the serious doubts as to whether the enhancements further any of the purposes of sentencing — Congress and the U.S. Sentencing Commission should reduce the magnitude of enhancements based on prior drug convictions or even eliminate them altogether.
I am growing confident Elena Kagan will be Prez Obama's SCOTUS nominee...
because the folks at SCOTUSblog now have posted here a nearly 10,000-word commentary, which discusses "the most significant aspects of Elena Kagan’s experience and writings as they relate to the Supreme Court [and] various criticisms that have been raised against Kagan, including with respect to her views on the military (supposedly too liberal) and executive power (supposedly too conservative), as well as the prospect that she will be required to recuse from a substantial number of cases early in her tenure on the Court."
I would be quite surprised if the shrewd folks at SCOTUSblog would put up this comprehensive treatment of Kagan if she was not very likely to be named in the next few days by President Obama. I suppose it is possible that the intense discussion of Kagan the last few days is just a ball fake by the Prez before he drives to the rim with a different nominee. But I think it is time to start making predictions about whether Kagan will get more votes to confirm than did Justice Sotomayor, and also to start speculating about whom might get named to replace Kagan as SG.
Some recent related posts:
- "Elena Kagan Will Be Obama's Supreme Court Pick: Mike Allen"
- Who might sentencing fans want added to the latest SCOTUS short list?
- Should sentencing fans be rooting for a non-judge replacement for Justice Stevens?
Update: Major media are reporting. SG Kagan will be officially named as the nominee at 10am Monday.
What sentence might victim Sarah Palin urge for her hacker?In this postfrom last weekend, I noted that there were lots of interesting and important computer crime sentencing issues raised by the recent conviction of a college student who hacked into Sarah Palin's Yahoo Mail account in 2008. One of those issues concerned whether under the federal Crime Victims Rights Act, Sarah Palin would formally qualify as a "victim" of the criminal hacker. Professor Paul Cassell, who is an expert and frequent litigator under the CVRA, responds via this postat The Volokh Conspiracy with these insights:
[Would] Sarah Palin ... be considered a “victim” of the crime under the Crime Victims Rights Act (CVRA), thereby eligible to give a victim impact statement (either or orally or in writing) when the hacker is sentenced[?] The answer to that question, I believe, is clearly “yes.”...
The CVRArequires that a person be “directly and proximately” harmed by an offense to be protected by the statute. Given that the indictment itself alleges a “tortious invasion of privacy” committed against Palin, it seems clear that she qualifies for protected victim status.
Sarah Palin has condemned the crime – and applauded the recent verdict – on her Facebook page. It is probable that the Probation Officer preparing the pre-sentence report will contact her. Perhaps she will want to pass along comments directly to the judge as well. If so, like every other “victim” of a federal crime, the Crime Victims’ Rights Act gives her that right.
These helpful points in turn prompt the question that is the title of this current post: what sentence might Sarah Palin urge for her hacker? I suspect she might avoid recommending (at least publicly) a specific prison term, but might she urge (publicly?) some kind of shaming sanction or community service as part of the sentence?
Would it be fitting for the defendant here to be ordered to create a YouTube video explaining the harms of hacking, and might Palin seek to be involved in such a shaming/service project? At the very least, such a video would make for a good Facebook link.
Recent related post:
"Protecting the public while saving public money"The title of this post is the headline of this op-ed out of Missouri, which is authored by a county-level prosecuting attorney. Here are some notable excerpts:
It is a myth that prisons are full of first-time nonviolent criminals. Fewer than 7 percent of the inmates in Missouri prisons fall within the Department of Corrections’ definition of “first-time nonviolent offender.” That means 93 percent of Missouri’s 30,000 prisoners are violent or chronic felony offenders, according to the corrections department’s own narrow definition.
More importantly, the term “first-time nonviolent offender” includes people who clearly deserve to be in prison. The term does not mean the offender is incarcerated without good reason or, in some instances, does not pose a danger to the public.
For example, the department categorizes the following crimes as “nonviolent”: felony DWI offenders with four or more prior convictions; weapons charges; aggravated stalking; burglary while someone is at home; resisting arrest resulting in a risk of death; and escape involving the use of weapons.
Prosecutors recognize that the remaining offenders — far fewer than 2,000 inmates — may not normally pose a danger if released. However, the vast majority of these offenders have already received multiple chances on probation and failed repeatedly. Ultimately, judges must have the ability to incarcerate offenders — even nonviolent ones — if those people refuse to conform to the terms of court-ordered supervision.
Other inmates have committed a particularly aggravated nonviolent offense such as stealing hundreds of thousands of dollars or breaking into dozens of homes. It is true that 41 percent of these offenders re-offend when released. It is also true that judges correctly recognized these offenders’ likelihood of victimizing others when originally sentencing them to prison.
Prosecutors agree there are cost-efficient solutions to address true nonviolent offenders in a way that promotes recovery and rehabilitation rather than simply punishing people through incarceration. For example, drug and DWI courts can address the serious needs of addicts at one-third the cost of incarceration. Such programs can keep people out of the criminal justice system forever if they are motivated to be successful.