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June 26, 2010

Texas state judge schedules hearing on whether there is real risk of executing the innocent

This local story from Texas, headlined "Texas judge to hold hearing on death penalty law," reports that a state judge has scheduled a hearing for this fall that could quickly become a focal point for debate over wrongful convictions in capital cases. Here are the basics:

Texas' use of capital punishment will undergo legal scrutiny this fall as a judge on Friday scheduled a hearing to listen to evidence on whether there's a substantial risk the state's death penalty law allows for the possible execution of an innocent person.

State District Judge Kevin Fine set the hearing for Nov. 8 as part of a pretrial motion in which two defense attorneys for a Houston man facing a possible death sentence asked that Texas' death penalty statute be declared unconstitutional.

Fine initially granted the motion in March, declaring the law unconstitutional because he believed it is safe to assume innocent people have been executed.  He also questioned whether society, considering the recent history of death row inmate exonerations, can continue to ignore this reality.  Anti-death penalty groups lauded his March decision and many elected officials, including Gov. Rick Perry, criticized it.

Fine, a Democrat, is a judge in Harris County, which sends more inmates to death row than any other county in the nation.  Texas has carried out more executions than any other U.S. state.

The November hearing could last at least two weeks and death penalty experts from around the country are expected to testify, said Casey Keirnan, one of the defense attorneys that asked for the hearing.  Keirnan and Bob Loper are representing John Edward Green Jr., accused of fatally shooting a Houston woman and wounding her sister during a June 2008 robbery.

"I think everybody in the United States would agree that the possibility exists" an innocent person has been executed, Keirnan said.  "We think there is much more than a possibility, based on all the exonerations, all the problems with the forensics."

Kari Allen, a prosecutor with the Harris County District Attorney's Office, said her office isn't opposed to a hearing that would examine the constitutionality of the state's death penalty law. "We are opposed if the hearing is about whether or not Texas has executed an innocent person," she said. "We do not believe (Fine) has the jurisdiction to make that sort of ruling."

Prosecutors have also objected to some of the issues that defense attorneys plan to bring up at the hearing, including the legitimacy of eyewitness testimony.  The Harris County District Attorney's Office had filed a motion asking to remove Fine from the case, accusing him of being biased against capital punishment.  But another judge appointed to review the motion denied the request last month, saying Fine's impartiality could not be reasonably questioned.

Attorneys for Green, who's being held in the Harris County jail, argue Texas' death penalty statute violates their client's constitutional right to protection from cruel and unusual punishment.  They say it's because the law's use has created a substantial risk that innocent people have been, and will be, convicted and executed.  Prosecutors argue the law is well-settled and that capital punishment can be fairly and properly sought in the state.

There is strong support in Texas for the death penalty, but the state's use of it has recently come under fire from death penalty opponents in two cases.  Earlier this month, a judge ordered DNA testing on a strand of hair that was the only physical evidence linking a man, Claude Jones, to a 1989 shooting death for which he was executed 10 years ago.  In April in a separate case, a state forensics panel renewed its review of a questionable arson finding that led to the 2004 execution of Cameron Todd Willingham, who was convicted of setting a fire that killed his three children....

Last year, the state executed 24 people, including six cases from Harris County. Thirteen people have been executed so far this year, one from Harris County. The state's next execution is set for Wednesday.

This scheduled hearing could quickly become one of the biggest death penalty stories of 2010 if it goes forward as planned and if the defense is allowed to bring in national figures to testify as to the risks and causes of wrongful conviction.  But still, a columnist at the Dallas Morning News here sensibly wonders "Will Judge Fine's death penalty hearing lead to anything?"

June 26, 2010 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (22) | TrackBack

A (record?) long probation sentence for Florida lawyer who stole from his clients

This local story out of Florida, which is headlined "Disbarred Boca lawyer sentenced to 25 year probation for taking $577,000 of clients' money," has me wondering if anyone know the longest sentence of probation ever imposed. Here are the particulars of this interesting white-collar state sentencing case:

Longtime Boca Raton attorney Joseph Keeley, who earlier pleaded guilty to grand theft after stealing $577,000 from a client's trust account, faced sentencing Friday.  Keeley, 64, suffers a vocal chord disorder called spasmotic dysphonia and testified, eking out in a strangled voice his explanation to Circuit Judge Amy Smith that he took the money to cover expenses at his Boca Raton firm.

His family members -- son, wife of 38 years and father-in-law - also had trouble explaining what happened, describing watching his decline from an hardworking, honest man - into what they testified they suspect is mental illness....

His son, a police officer, testified he wasn't even aware his father had pleaded guilty and was being sentenced until last month. "The family has been in the dark," he said.

Prosecutor Ryan Kelley asked that Keeley be sentenced to 10 years in prison.  Keeley was already disbarred in 2006 in a separate matter.  Keeley's attorney, Assistant Public Defender Jerry Wade II, argued there were legal reasons to go below the state sentencing guidelines recommending prison.  For one, Keeley admitted his crime when police interviewed him and committed it in an unsophisticated manner.

Judge Smith agreed it was unsophisticated. Keeley wrote checks to himself from the trust account - an obvious red flag for auditors. "That's insane... I do question Mr. Keeley's mental status," Smith said. "It's almost as though you don't understand what you did."  But punishment is in order, nonetheless, she said.

Smith sentenced 64-year-old Keeley to 25 years on probation, urging him to work and pay the money back, but first, serve one year in jail.  Keeley is due to turn himself in on Monday.

June 26, 2010 in Criminal Sentences Alternatives, Offense Characteristics, White-collar sentencing | Permalink | Comments (5) | TrackBack

June 25, 2010

"The Plea Jury"

The title of this post is the title of this terrific and provocative new article by Laura Appleman now appearing in the Summer 2010 issue of the Indiana Law Journal. Here is the abstract:
This Article argues that it is time to reform the much-criticized plea-bargaining process by restoring the Sixth Amendment jury trial right back to criminal adjudication.  My proposal would incorporate the local community into the guilty-plea procedure through the use of a plea jury, thus solving a multitude of problems within the criminal justice system.  In a plea jury, a lay panel of citizens would listen to the defendant’s allocution and determine the acceptability of the plea and sentence, reinvigorating the community’s right to determine punishment for offenders.  My goal is to return the Sixth Amendment community-jury right to its proper place by envisioning its integration into the guilty plea, based on recent Supreme Court decisions, punishment theory, criminal justice policy, and modern procedural concerns.  In doing so, I will illustrate not only how a standard jury would be incorporated, but also why the critical norms embedded into jury participation will help improve the existing guilty-plea procedure.

June 25, 2010 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

A notable Sixth Circuit concurrence lamenting Dillon and modern severity

Concurring in a Sixth Circuit panel decision today in US v. Robinson, (6th Cir. June 25, 2010) (available here), Judge Merritt assails the Supreme Court's crack retroactivity ruling in Dillon last week and broadly laments current federal sentencing realities.  Here is a snippet of Judge Merritt's separate opinion:
The Sentencing Commission has the authority, according to United States v. Dillon, No. 09-6338, June 17, 2010, by mandatory rule, to entirely repeal individualized sentencing in such cases.  For the reasons stated by Justice Stevens in his dissent, I would reach the opposite conclusion, if I could, and apply the principle that under § 3582(c) a federal court should consider the “no-greater-than-necessary” principles of § 3553(a).

In addition, I would point out that 18 U.S.C. § 3661, unmentioned by the Court in Dillon, says:

No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence. (Emphasis added.)

This is a flat-out, general, statutory prohibition against restraining judges when they must pronounce sentence from considering the injustice of Dillon’s sentence or any injustice in Robinson’s sentence in this case. The Sentencing Commission’s rigid rule that continues in place overly harsh sentences gives no consideration to this statutory requirement.  So we continue on without hope for change with a sentencing system that Justice Stevens accurately describes as... "an exceptionally, and often mindlessly, harsh federal punishment scheme."

This “mindlessly harsh federal punishment scheme” is, as Justice Stevens says earlier in the opinion, now so bad that it should be regarded as “on dubious constitutional footing.”  In outlawing another such mindlessly harsh form of punishment more than 50 years ago — expatriation — the Warren Court said that our constitutional system “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”  Trop v. Dulles, 356 U.S. 86, 101 (1958).  In a concurring opinion, Justice Brennan pointed out:

In recent years we have seen such devices as indeterminate sentences and parole added to the traditional term of imprisonment. Such penal methods seek to achieve the end, at once more humane and effective, that society should make every effort to rehabilitate the offender and restore him as a useful member of that society as society’s own best protection. Id. at 111.

Justice Brennan referred to the effort to get rid of these values by using the punishment of expatriation as nothing “other than forcing retribution from the offender — naked vengeance.” Id. at 111-12.  The same thing is happening now once again.  We have eliminated rehabilitation and the parole system from the penal system through the sentencing guidelines, and both judges and administrators (other than the Sentencing Commission) have lost all authority to later adjust a sentence that is too harsh.  The guidelines themselves do not take into account rehabilitation, “maturing standards of decency,” and other values like age, disability, marital status, and parenthood.  Perhaps one of these days an American political institution will recognize what we have created and begin again to make some adjustments, as the Warren Court did in the 1960’s and 1970’s.  But for the time being, we just have to live with a “mindlessly, harsh federal punishment scheme.”

June 25, 2010 in Implementing retroactively new USSC crack guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (11) | TrackBack

As Kagan confirmation hearings are set begin, do sentencing fans have any new SCOTUS insights?

Elena Kagan is the first SCOTUS nominee in a long time without any judicial record and without any history of engagement in criminal justice matters.  In light of that reality, the run-up to her confirmation hearings have been largely devoid of any blog-worthy discovery or discussions.  And I suspect and fear that the hearings as well will have precious little discussion of criminal justice issues.  (Because the Supreme Court is going to hand down the McDonald incorporation rulings next week, the Second Amendment will surely get some play during the hearings, though I anticipate Kagan dancing around tough questions by saying she agrees that there are individual gun rights but they must be subject to reasonable restrictions.)

But perhaps I have missed some hidden nugget or lurking story-line concerning Kagan and criminal justice in the (seemingly tepid) media coverage of her back-story.  Or perhaps readers have some new insights concerning how the transition from Justice Stevens (who has a truly historic sentencing jurisprudence legacy) to a new Justice (who is essentially a blank slate) will impact the Court's criminal justice work.  Or perhaps as the winding down of the current Term is providing new perspective on where the Roberts Court more broadly may be headed on criminal justice issues. 

Whatever the possibilities, readers are encourage to share any new SCOTUS insights in the comments.

June 25, 2010 in Who Sentences? | Permalink | Comments (2) | TrackBack

Alleged hacker learning severe punishment can follow federal plea refusal

Anyone familiar with federal sentencing realities knows that, at least in some cases, a defendant's decision to refuse the first plea deal offered by prosecutors can result in a severe increase in the sentencing stakes.  This new Wired story, which is headlined "Accused Hacker Who Balked at 2-Year Prison Deal Now Faces Decades," provides a high-profile example of the severe punishment that can follow a refusal to accept a federal plea deal:

An alleged hacker who declined a 2-year plea deal is facing decades behind bars after federal authorities Thursday added multiple charges, including possession and distribution of child pornography.

Barry Ardolf, 45, of Blaine, Minnesota, had rejected a plea deal in connection to charges accusing him of sending Vice President Joe Biden a threatening e-mail from his neighbor’s computer, a computer he is accused of hacking. The decision to reject the offer, his lawyer said Monday, “was a difficult one.”

A federal grand jury substantially upped the ante against the computer technician Thursday, ringing him up on additional charges of identity theft and two kiddie-porn accusations carrying lifetime sex-offender registration requirements. The authorities said he faces a maximum 20 years for the alleged porn distribution, 10 years for the porn-possession charge and five years each for the two hacking charges.

Ardolf maintains his innocence, and federal judges are not bound by sentencing guidelines.

When Threat Level reported his rejection of the plea deal Monday, we noted that the move could come back to haunt him. The procedural posture of the case meant new charges were imminent absent a plea deal. Before Thursday’s indictment, he faced a maximum seven-year term if convicted.

The authorities maintain he unlawfully accessed his neighbor’s computer and sent the threatening e-mail to Biden under his neighbor’s account — intending for the e-mail to be traced to his neighbor. “I swear to God I’m going to kill you!” the e-mail threat read, in part.

The charges added Thursday allege he also sent e-mails from his neighbor’s account to that same neighbor’s co-workers. One of the messages contained child pornography, according to the indictment.

June 25, 2010 in Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (14) | TrackBack

June 24, 2010

This is Fox News on drugs ... lots of questions

Egg The title of this post should remind folks of my generation of the all-time classic PSA from the 1980s urging kids to stay off drugs.  And it is inspired by this new series at Fox News, which is headlined "Going to Pot" and which has a variety of linked materials and segments.  The springboard for some of the coverage seems to be the California initiative on this November's ballot to decriminalize marijuana in our nation's largest state.  However, many pieces in this Fox News special series are focused particularly on medical marijuana.  In any event, here are some of the notable segments in this Fox News series as of this writing:

It is not entirely clear from these segments if the folks at Fox News are somewhat sympathetic or mostly cynical about medical and recreational marijuana.  Indeed, though there seems to be a bit of an anti-pot slant to some of these stories, Fox News does arguably live up to its credo of "We report, you decide" in this special series.

As regular readers know, I genuinely believe that the anti-big-government and pro-liberty and pro-state-rights rhetoric that is often heard from most Fox pundits should lead the Fox-friendly folks to be generally supportive of state efforts to permit individuals legal (though regulated) access to their weed of choice.  (We could surely expect that folks at Fox News would be very quick to complain if the Obama Administration starting talking about federal prohibition of tobacco or alcohol.)

But, as has been discussing in this setting before, the usual anti-big-government and pro-liberty rhetoric that comes from folks on the right tends to be dialed down when the issue turns to criminal justice issues like mass incarceration and the war on drugs.  Nevertheless, the very fact that Fox News has this new "Going to Pot" segment perhaps reveals that the usual drug war times they are achanging.

Some related posts on pot policy and politics:

June 24, 2010 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Backdating nets former Brocade CEO sentence of 18 months

In a day filled with federal white-collar news, here is one more story of note from California's federal courts: a "federal judge sentenced former Silicon Valley executive Gregory Reyes to 18 months in prison and fined him $15 million Thursday after a jury at a retrial convicted him of concealing the backdating of stock options." Here are more of the specifics:

Reyes, former chief executive officer of Brocade Communications in San Jose, was initially found guilty in 2007 of misleading stockholders and federal regulators about the value of stock options issued to company employees.

It was the nation's first criminal prosecution over securities backdating, the practice of increasing the value of an option to buy company stock by altering the grant date to coincide with the date of the lowest stock price. Backdating is legal, but misrepresenting the options in public reports, and thus overstating the company's net income, is a crime.

A federal appeals court overturned Reyes' convictions last year, saying prosecutors had falsely told the jury that Brocade's finance department was unaware of any backdating. A second jury convicted him in March of nine felony charges of securities fraud and making false statements while acquitting him of conspiracy....

Prosecutors asked Breyer for a 37-month sentence and a $33 million fine, saying evidence since Reyes' first trial has shown his actions harmed more than 1,200 shareholders. Defense lawyers argued for probation and a modest fine, citing Jensen's two-month sentence and Reyes' payment of $12.5 million in related civil suits.

June 24, 2010 in Offense Characteristics, White-collar sentencing | Permalink | Comments (0) | TrackBack

Much ado about two months in the resentencing of former Qwest chief Joe Nacchio

As noted in this first report from the Denver Post, the "federal judge handling former Qwest CEO Joe Nacchio's resentencing has imposed a sentence of 70 months and ordered him to pay $19 million in fines and $44.6 million in forfeitures."  Here what that means:

The sentence determined by U.S. District Judge Marcia Krieger cuts two months off of Nacchio's current sentence and reduces his forfeitures by just more than $7 million....

Nacchio has served 14 months of a six-year sentence for illegal insider trading.  A federal appeals panel last summer granted Nacchio a new sentence, ruling that trial judge Edward Nottingham miscalculated how much Nacchio gained from illegally selling Qwest stock based on nonpublic information that the company was faltering financially.

As detailed in this TalkLeft post, Judge Krieger earlier had indicated that "she accepted the Government's version of the amount of loss and is putting it at 28 to 32 million, which [put Nacchio's] guidelines [at] 63 to 78 months."  In other words, Nacchio was given a within-guideline sentence this time around and can now plan to get back to his life and family a couple months earlier than originally slated.

I had expected Nacchio to do a bit better this time around, though I suppose being able to hold on to an additional $7 million dollars is not inconsequential.  It will be interesting to see if Nacchio might use some of these monies to fund another round of appeals of his federal prison sentence. 

June 24, 2010 in Federal Sentencing Guidelines, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

Some blogosphere reactions to Skilling et al.

Based on a brief tour of the legal blogosphere, I found these posts of notes reacting to the Supreme Court's reconstruction of the honest services fraud statute in Skilling and companion cases fraud statute (basics here, full opinion in Skilling here). 

June 24, 2010 in White-collar sentencing | Permalink | Comments (8) | TrackBack

Fascinating data on recent trends and circuit specifics for federal child porn sentences

A few weeks ago, US District Judge Gregory Presnell asked whether I had any detailed or circuit-specific data regarding federal sentences for child porn offenses. I responded that the US Sentencing Commission would be the place to get such data, and Judge Presnell inquired of the Commission.  And now I am happy to report that Judge Presnell has provided me with the information that was provided to him, and he has even written up this helpful summary of what the Commission data shows:

Pursuant to my request, the USSC sent me data related to sentences imposed under U.S.S.G. 2G2.2 for the fiscal years 2007-2009. That data is presented in the attached tables.

Nationwide, from 2007 to 2009, the number of sentences imposed under this guideline almost doubled, from 853 to 1,546, and the percentage of below-guideline sentences increased from 30.8% to 51.6%.  Similarly, the average percentage reduction increased from 36.3% in 2007 to 40.3% in 2009.  Thus, during the last fiscal year more than half of all child porn sentences were below the minimum guideline sentence, and the average reduction was approximately 40%.

Excluding the First Circuit and DC Circuit (whose case loads are too small to draw meaningful data), the percentage of sentences below the guideline range from a high of 65% in the Third Circuit to a low of 30% in the Fifth Circuit.  The average percentage reduction is highest in the Second Circuit at 47% and the lowest is the Seventh Circuit at 30%. Overall, there is not great disparity among the Circuits.

Compared with the Circuit Court data, the Middle District of Florida had a high percentage of below-guideline sentences -- 70.6%, but the average percentage reduction was 38.8%, near the national average in fiscal year 2009.  During that same period, the Eleventh Circuit was right at the national average with 51.4% of sentences below the guideline and an average reduction of 39%.

I suspect that any and everyone dealing with the always challenging issues surrounding the sentencing of child pornography offenses will be interested in the data that can be found in the charts available for downloading here: Download Circuit data on USSG 2G2.2 with tables.

Some related prior federal child porn prosecution and sentencing posts:

June 24, 2010 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Sex Offender Sentencing | Permalink | Comments (4) | TrackBack

Notable talk about possible sentencing reforms in Pennsylvania

The Pittsburgh Post Gazette has this interesting new piece headlined "Lawmakers seek sentencing reform to cut prison population," discussing possible sentencing reforms in Pennsylvania. Here is how the piece starts:

Some Senate and House members want to enact new alternative sentences for non-violent convicts, saying they would decrease overcrowded state prisons and lighten the financial burden on the state. "Pennsylvania is still in the stone ages when you talk about prison reform," Rep. Kenyatta Johnson, D-Philadelphia, said. "The appetite for prison reform is now."

The reforms, which would require several new pieces of legislation, are backed by a bipartisan group of lawmakers, including Sen. Stewart Greenleaf, R-Montgomery, chairman of the Senate Judiciary Committee, and Rep. Ronald Waters, D-Philadelphia.

Measures include having non-violent prisoners who are facing short, minimum sentences serve their time at community-based corrections centers instead of a state prison. Alternative incarceration programs would also be sought for lesser offenses, such as drug-related crimes and technical parole violations.

Mr. Greenleaf said nearly half of the state's prisoners are non-violent offenders. He said the state prison population has skyrocketed from about 8,000 in 1980 to more than 51,000 now. The state's prison population was temporarily reduced recently when 2,000 prisoners were sent to prisons in Virginia and Michigan, but the number continues to rise. "We've been tough on crime, but we haven't been smart on crime," Mr. Greenleaf said.

Pennsylvania spends more on corrections than 44 other states, according to Mr. Waters, who is sponsoring three bills aiming to reform sentencing. The state's Department of Corrections budget is now approaching $2 billion a year, more than 55 times what it was nearly 40 years ago, according to Mr. Waters' figures.

Mr. Greenleaf said if the prison population continues to increase at the current rate, Pennsylvania may have to build a new prison every year, at the cost of more than $200 million per prison. Three new prisons are already scheduled to be built by 2014, and they will be immediately filled if trends continue. They will be in Centre, Montgomery and Fayette counties.

June 24, 2010 in Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (1) | TrackBack

Am I crazy to see a sentencing back-story in the Skilling ruling?

As my students know, I think everything in the world (not just everything related to criminal justice) is somehow.  Consequently, I may be trying a bit too hard to find a sentencing story in the Supreme Court's decision today in Skilling and the other honest services cases it handed down this morning.  Still, even though sentencing issues are discussed in the Skilling opinions, it think it is reasonable to speculate that the very lengthy prison sentences that are now often prescribed under the federal sentencing guidelines for fraud may have played a role in the Justices' thinking.

Back in the late 1980s when the Supreme Court decided the McNally case and Congress responded by creating the honest services fraud statute, even the most notorious white-collar defendants rarely got very long prison sentences and regularly could secure early release via parole.  For example, junk bond king Mike Milken, who might be seen as the 1980s version of Jeff Skilling, was sentenced to only 10 years and ultimately served less than two years in federal prison.

But now, under modern federal sentencing rules with parole eliminate and very long prison sentences now very common, defendants like Jeff Skilling and Conrad Black face the prospect of a whole lot of years and perhaps many decades in federal prison following a fraud conviction.  Against this backdrop, I believe all the SCOTUS Justices may well have been uniquely concerned about allowing defendants to be convicted under a vague fraud statute given that the sentencing stakes in these cases are now so high.

Related posts on SCOTUS honest services rulings:

June 24, 2010 in Offense Characteristics, Scope of Imprisonment, White-collar sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack

Mark your calenders for Monday, June 28, Second Amendment fans

With the release of a ruling in Skilling and the other honest services cases (basics here) and also a fascinating AEDPA habeas ruling in Magwood (basics here), criminal justice fans now only await one final decision from the Justices this Term.  But it is a doozy: the McDonaldSecond Amendment incorporation case concerning state and local restrictions on gun rights.  And according to the Court, that opinion will be handed down on Monday, June 28, which will be the last day of the SCOTUS Term.

Based on the authorship of the opinions that have been handed down, the folks at SCOTUSblog predict that Justice Alito is the main author of the main opinion in McDonald.  That prediction should make criminal justice fans especially eager and excited to learn on Monday what the Court says about the Second Amendment and the impact of Heller on the states.  As the only former prosecutor in the Heller majority, I suspect Justice Alito may be more attentive than some other Justices to the potential echoes of Heller and now McDonald for state criminal justices systems.

Anyone dare to predict the outcome and voting patterns in McDonald?  Anyone think I am foolish to hope (and/or fear) that McDonald will turn out to be the biggest and most consequential criminal justice decision of the Term?  Anyone think there is a chance that selective incorporation (an idea I pitched in this McDonald amicus brief could carry the day).

June 24, 2010 in Second Amendment issues, Who Sentences? | Permalink | Comments (3) | TrackBack

Anyone have ideas how (and how many) federal fraud prosecutions will be impacted by Skilling?

Former Enron CEO Jeff Skilling's name will likely now remain (in)famous for a long time not just because of his role in Enron's collapse and his subsequent prosecution, but also because his case is now the chief one used by the Supreme Court to announce new rules concerning the reach and application of the federal "honest services" fraud statute (basics here, full opinion in Skilling here).  Though I will need to read and re-read today's Skilling decision in order to be able to comment intelligently on its meaning and import, it is not too early to encourage readers to speculate about the ruling's potential impact.

Specifically, there are two parts to my initial inquiry into the import and impact of Skilling: (1) just how might past white-collar convictions and sentences (and how many could) be attacked based on the ruling, and (2) just ho might future white-collar prosecutions be influences by the ruling.  Please share your thoughts in the comments on either or both of these fronts, dear readers.

June 24, 2010 in Sentences Reconsidered, White-collar sentencing | Permalink | Comments (11) | TrackBack

Another AEDPA habeas win for a defendant produces fascinating 5-4 SCOTUS split

Though sure to be lost in the all attention given to the honest services ruling today, hard-core habeas fans will be eager to check out the result and the voting patterns in today's SCOTUS ruling in Magwood v. Patterson. Here is how the folks at SCOTUSblog describe the ruling:

Justice Thomas writes for the Court. The lower court is reversed and the case is remanded.

The vote is 5-4. Justice Kennedy dissents, joined by the Chief Justice and Justices Ginsburg and Alito.

The Court rules that the defendant's habeas application is not a "second or successive" petition because it challenges a new judgment for the first time.

If memory serves, I believe Blakely-Crawford guru Jeff Fisher argued Magwood, and he obviously has figured out the secret trick for convincing Justices Thomas and Scalia to vote in favor of a state criminal defendant.  The full opinion in Magwood is available here.

June 24, 2010 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack

SCOTUS decides honest services fraud statute covers only brides and kickbacks

Through a series of three opinions authored by Justice Ruth Bader Ginsburg, the Supreme Court this morning has had a lot to say about the federal "honest services" fraud statute that has historically played a prominent role in many white-collar crime prosecutions.  Here is the early report from SCOTUSblog about the Supreme Court's work in the first of the trio of cases concerning this statute, Skilling:

We have the first opinion, Skilling v. United States, 08-1394. The Chief Justice announced that Justice Ginsburg would have three opinions; this is the first. The cases is affirmed in part, vacated in part, and remanded.

The Court rules that pre-trial publicity and community prejudice did not prevent Skilling from having a fair trial.  The second part of the opinion is that the Honest Services statute covers only bribery and kickback schemes.

There are multiple opinions in this case... The Court's main opinion, by Ginsburg, has varying support by different Justices.  There is a partial dissent filed by Justice Sotomayor, joined by Justices Stevens and Breyer....  In her dissent, Justice Sotomayor disagrees with the Court's conclusion that Skilling had a fair trial before an impartial jury..... 

On the honest services ruling, part of the opinion vacates the Fifth Circuit's ruling on Skilling's conspiracy conviction.

The full opinion in Skilling runs 114 pages(!), and it can now be accessed at this link.  And now here is the early SCOTUSblog report of the other two opinions in this white-collar troika:

We have the second opinion, Black v. US, 08-876: Vacated and remanded.

The vote is unanimous, but there are two separate concurring opinions: Justice Scalia, joined by Justice Thomas, concurs in part and concurs in the judgment. Justice Kennedy has also filed a separate opinion concurring in part and concurring in the judgment.

The Court rules that its opinion in Skilling on the scope of the honest services law renders the jury instructions in this case on that law incorrect....

We have the third opinion: a one paragraph per curiam opinion in 08-1196, Weyhrauch v. US. The case is vacated and remanded under Skilling.

The full opinion in Black, which runs only 13 pages, is available here.

June 24, 2010 in White-collar sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

"Clean Slate: Expanding Expungements & Pardons For Non-Violent Federal Offenders"

The title of this post is the title of this new article by Lahny Silva now available via SSRN. Here is the abstract:

Over the past forty years, the United States Congress has passed legislation expanding the federal criminal code intruding into an area typically reserved to the states.  The "tough on crime" rhetoric of the 80s and 90s brought with it the enactment of various legislative initiatives: harsh mandatory minimum sentences for non-violent federal offenders, "truth in sentencing" laws that restricted or abolished parole and early release, and strict liability disqualifications from employment and federal benefits based solely on the fact of conviction. The effect of this legislation was the creation of a new criminal class: a federal prison population.  Unlike the states however, the federal government does not have a legal mechanism in place that adequately reintegrates federal offenders back into the American polity. This has contributed to soaring federal incarceration rates, rising government costs for corrections, and a historically high rate of criminal recidivism.  This is a price tag the United States can no longer afford to pay.

This article argues that individuals who have served their sentences and abided by the law for some period afterward should be given the opportunity to clear their slates of their criminal histories.  Such expungement of criminal convictions for individuals who demonstrate that they will abide by the law are likely to reduce the costs of the criminal justice system and improve the lives of ex-offenders.  The first parts of this article examine post-conviction penalties and contemporary recidivism trends. Second, this article investigates the law governing federal pardons and judicial expungements, finding that the doctrines and their applications lack consistency, making it difficult for non-violent offenders to re-enter mainstream society . This article argues that simply eliminating post-conviction disabilities would be extremely complex and perhaps not feasible practically or politically. Moreover, the two existing federal post-conviction remedies-pardons and judicial expungements are not designed to, and cannot as a practical matter, provide systematic relief from post-conviction disabilities.  Using state post-conviction mechanisms as examples, this article argues that congressionally sanctioned expungements are an attractive alternative to relieve non-violent offenders of the effects of post-conviction disabilities. I propose that the United States Sentencing Commission (hereinafter "U.S.S.C.") create a Second Chance Advisory Group to determine how best to ameliorate the collateral consequences of federal convictions.  With a Second Chance Advisory group, the U.S.S.C. may be used as a vehicle for researching and recommending legislative policy initiatives that will effectively slash incarceration, recidivism, and opportunity costs.

June 24, 2010 in Clemency and Pardons, Offender Characteristics | Permalink | Comments (4) | TrackBack

June 23, 2010

BJS reporting state prison population down almost 3,000 in 2009, while fed population rose over 6,800

As detailed in this official press release from the Bureau of Justice Statistics, in 2009 "the number of prisoners under jurisdiction of state correctional authorities decreased by 2,941 inmates (down 0.2 percent)." This is big news because it represents "the first decline in the state prison population since 1972." But the total prison population in incarceration nation still grew because in 2009 the "federal prison population increased by 6,838 (or 3.4%) which accounted for all of the increase in the U.S. prison population." Here are more details from the BJS press release:
Twenty-four states experienced decreases in their prison populations and 26 had increases. Six states reported declines of more than 1,000 prisoners: Michigan (down 3,260), California (down 2,395), New York (down 1,660), Mississippi (down 1,272), Texas (down 1,257), and Maryland (down 1,069). States reporting the largest increases included: Pennsylvania (up 2,214), Florida (up 1,527), Louisiana (up 1,399), Alabama (up 1,282) and Arizona (up 1,038)....

By yearend 2009, the U.S. prison population (state and federal prisoners combined) reached 1,613,656, increasing by 0.2% during the year. The increase of 3,897 prisoners was the smallest annual increase during the current decade.

As of June 30, 2009, state and federal prisons and local jails had custody over 2,297,400 inmates, a decrease of 0.5 percent since yearend 2008. This decrease resulted from the 2.3 percent decline of inmates held in local jails, which hold over a third of the custodial population each year.

Midyear 2009 incarceration rates for inmates held in custody in prisons or jails differed by race and gender. Black males, with an incarceration rate of 4,749 inmates per 100,000 U.S. residents, were incarcerated at a rate more than six times higher than white males (708 inmates per 100,000 U.S. residents) and 2.6 times higher than Hispanic males (1,822 inmates per 100,000 U.S. residents). Black females (with an incarceration rate of 333 per 100,000) were more than two times as likely as Hispanic females (142 per 100,000) and over 3.6 times more likely than white females (91 per 100,000) to have been in prison or jail on June 30, 2009.

I am not surprised that jurisdictions that generally have to balance their budgets saw a decline in incarceration in 2009, while the one jurisdiction that just prints money went in the other direction.  One more reason to root for local control on most crime and punishment issues.

All the details of this new data run can be found in this new BJS publication, titled "Prisoners at Yearend 2009–Advance Counts."

June 23, 2010 in Detailed sentencing data, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

"Nacchio may receive lighter prison term"

The title of this post is the headline of this new report from the Denver Post, which reflects a sentencing hearing going on this week in federal court in a high-profile white-collar resentencing. Here are some of the details (which the average lawyer might need the help of a calculator to process fully):

Former Qwest chief executive Joe Nacchio would receive a lighter prison term based on one methodology sought by the federal judge handling his re-sentencing.

Serving six years for criminal insider trading, Nacchio was granted a new sentence last summer after a federal appeals court panel ruled that the trial judge miscalculated how much of his gains were a result of the nonpublic information on which his illegal stock sales were based. The gain amount is a key sentencing factor.

As part of the re-sentencing, U.S. District Judge Marcia Krieger on Tuesday asked a government expert to compare Qwest's share performance with two indexes of telecommunications stocks, Nacchio attorney Sean Berkowitz said today in court.

Krieger sought a comparison from May 29, 2001 — the date of the last stock sale on which Nacchio was convicted — to July 31, 2002. Nacchio resigned under pressure from the Qwest board in June 2002.

Nacchio's expert witness, business law professor Daniel Fischel, performed the requested analysis and found that Qwest stock underperformed the two indexes — the Nasdaq and the Amex — by an average of 27 percent during that time frame.

Twenty-seven percent of $52 million — the gross on Nacchio's insider sales — is $14 million, Fischel testified in response to a question from Berkowitz. All other sentencing factors remaining the same, a $14 million gain would call for a prison term ranging from four years and nine months to five years and 11 months under federal guidelines.

Factoring in taxes paid and costs associated with exercising stock options, the gain would be about $8 million, leading to a range of four years and three months to five years and three months. The guidelines are advisory, so Krieger can impose a sentence outside the range, though she would have to state reasons for doing so.

As part of the initial sentence, the trial judge pegged Nacchio's gains at $28 million - the net on the insider sales after taxes and fees. Fischel, who contends the gain is $1.8 million, testified today that there are limitations to Krieger's methodology. "It is not linked to the inside information that was the basis for his criminal conviction," Fischel said....

Berkowitz contends Nacchio's prison term should be less than three years and five months. The government has argued that guidelines allow for a prison term of up to 12 years and seven months.

Nacchio, who was also ordered to pay $19 million in fines and $52 million in forfeitures, reported to prison in April 2009. Krieger is slated to issue the new sentence — which will include a lower forfeiture amount — on Thursday.

Ah, the joys of intricate loss calculations under the federal sentencing guidelines. 

June 23, 2010 in Federal Sentencing Guidelines, Sentences Reconsidered, White-collar sentencing | Permalink | Comments (0) | TrackBack

Fascinating review of the costs and challenges of sex offender civil commitment

The AP has produced this recent and effective article, headlined "Sexual predator treatment squeezes state budgets," noting the struggles many states are now having with their sex offender civil commitment laws.  The piece highlights why I do not worry too much about excessive use of state civil commitment of sex offenders: it is likely too expensive for states that have to balance budgets to devote a lot of resources toward keeping a lot of offenders civilly committed.  Here are snippets of the lengthy article:

Keeping sex offenders locked up in treatment after they finish their prison sentences emerged as a popular get-tough tactic in the 1990s, when states were flush with cash. But the costs have soared far beyond what anyone envisioned.

An Associated Press analysis found that the 20 states with so-called "civil commitment" programs will spend nearly $500 million this year alone to confine and treat 5,200 offenders still considered too dangerous to put back on the streets.

The annual costs per offender topped out at $175,000 in New York and $173,000 in California, and averaged $96,000 a year, about double what it would cost to send them to an Ivy League university. In some states, like Minnesota, sex offender treatment costs more than five times more than keeping offenders in prison. And those estimates do not include the considerable legal expenses necessary to commit someone.

The programs have created a political quandary for lawmakers who desperately need to cut spending in the midst of a recession but don't want to be seen as soft on rapists and child molesters. "I've heard people in a lot of the states quietly say, 'Oh, my God, I wish we'd never gotten this law,'" said W. Lawrence Fitch, a professor at the University of Maryland School of Law. "No one would ever dare offer repeal because it's just untenable."...

The heavy financial burden of treating confined sex offenders has left lawmakers with less money as they make agonizing cuts to areas like education and health care. Politicians who spent years cracking down on sex crimes now struggle to pay for their tougher laws. "It's easy to say, 'Lock everybody up and throw away the key,'" said state Rep. Michael Paymar, a St. Paul Democrat who heads a public safety budget panel. "But it's just not practical."

The laws have withstood legal challenges all the way to the Supreme Court. They are considered constitutional as long as their purpose is treatment, not detention. But living up to that standard can cost far more than traditional prison. And the costs persist for years because most inmates will never be released.

The programs have given rise to new and bigger treatment centers: California opened a 1,500-bed facility for sexual predators in 2005. Minnesota opened a 400-bed building last year and plans another expansion at Moose Lake, 110 miles north of the Twin Cities....

The confinement is costly mainly because of the need to hire behavioral therapists, social workers, psychologists and psychiatrists. For every 25 to 50 offenders, there is a five- to six-member treatment team. Parts of the facility resemble a community college campus, with chairs arranged around the edges of rooms for group therapy sessions. There is a separate unit for about 8 percent of the sex offenders who refuse to participate in treatment, and another one for aging clients, some of whom use wheelchairs and walkers....

Minnesota already spends $65 million a year to house and treat sex offenders. State lawmakers usually don't complain about the costs, but they balked when Gov. Tim Pawlenty asked to borrow $90 million to complete the expansion of the Moose Lake facility. They eventually gave him slightly more than half that amount, despite a growing deficit of $1 billion.

"We have to cut something else to pay for it," said Sen. Linda Berglin, a Minneapolis Democrat who supervises the budget for civil-commitment cases as head of a health and welfare spending panel. In most states, the number of confined sex offenders has steadily increased, requiring ever-greater spending.

Iowa spends nearly $7 million to confine 80 offenders, almost double 2005's $3.6 million budget for 48 patients. Virginia's program has swelled from 45 patients five years ago to more than 200 this year, with annual costs climbing from $10 million to almost $16 million.

Some states have steered clear of the civil-commitment system, partly because of financial reasons. In Louisiana, legislation died last year after top lawmakers questioned the cost and constitutional issues. Vermont legislators rejected a similar proposal....

Not all civil commitment programs are financially strained. The cost of Arizona's system actually dropped slightly in the last five years. In Wisconsin, the Sand Ridge center has expanded gradually without any outcry about the money involved.

Wisconsin has released 61 sex offenders since adopting a civil-commitment system in 1994. But in Minnesota, no one has ever gotten out. One man was released provisionally but got pulled back for a technical violation and later died in confinement. "Are Minnesota sex offenders that much more dangerous than Wisconsin sex offenders? Why can't we do that?" asked Eric Janus, an expert on civil commitment who heads William Mitchell College of Law in St. Paul.

Missouri and Pennsylvania have released one patient each. Nebraska has released just one person since 2006. Texas has yet to release anyone from its outpatient program. That compares with states like California, which has put nearly 200 offenders back into the community, and New Jersey, where 123 have been let go.

June 23, 2010 in Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (6) | TrackBack

Supporters decry while prosecutor defends stiff sentence given to Sholom Rubashkin

Two new pieces highlight two very different perspectives on the very long federal sentence given earlier this week to Sholom Rubashkin for his role in the financial fraud at a former Iowa kosher plant:

From the Huffington Post here, "Supporters Decry 'Horrifying' 27-Year Sentence For Slaughterhouse Chief," which includes this snippet:

In a statement released after the sentence announcement, Agudath Israel, an ultra-Orthodox organization, called it "a dark day" for both American justice and American Jewry.  "While none of us condones any wrongdoing by Mr. Rubashkin, the extraordinary severity of the sentence imposed upon one of our Jewish brothers sends chills of shock and apprehension down our collective spine," the statement reads. "This is a horrifying development."

From the Des Moines Register here, "Prosecutor: Rubashkin deserves his 27-year sentence," which includes this snippet:

Sholom Rubashkin deserves the prison time he received Tuesday in federal court, prosecutors said after a judge sentenced the former eastern Iowa meatpacking executive to 27 years. Bob Teig, a spokesman for the U.S. attorney's office, said the massive financial fraud scheme at Agriprocessors Inc. "cries out for a sentence like this."... 

Prosecutors, who have seldom spoke publicly since the immigration raid, said the fraud case ranked among the largest ever in Iowa's northern district. "It is a lengthy sentence," Teig said. "But he earned a lengthy sentence.  It's hard to get a 27-year sentence for a white-collar crime. It is very difficult."

Teig said Rubashkin's crimes differed from other high-profile, white-collar cases with lesser sentences because of his actions. U.S. District Judge Linda Reade concluded in her ruling that Rubashkin led the fraud, involved others in the plot and lied at his trial.  Teig said Rubashkin consistently refused to cooperate with authorities.

Related posts on the Rubashkin case:

June 23, 2010 in Federal Sentencing Guidelines, Offense Characteristics, White-collar sentencing | Permalink | Comments (0) | TrackBack

June 22, 2010

"Drug sentencing: It's a balancing act between state versus federal guidelines"

The title of this post is the headline of this effective new piece from the Richmond Times Dispatch, which is principally focused on how on how crack cases are processed in Virginia's federal courts.  Here are some excerpts:

Among the weapons brought to bear against Richmond's record wave of violence in the 1990s were stiff federal laws targeting drug dealers and firearms violators. The bloodshed has subsided since 1994, when the city had 161 slayings and the highest per-capita homicide rate in the country. Last year's toll of 39 did not even lead the state.

Authorities say the decade-and-a-half effort has paid off. But according to recent figures from the U.S. Sentencing Commission and other studies, it has also left the Richmond area as a national leader in both federal crack cocaine and firearm prosecutions that lead to long prison sentences.

In the 15 months that began Jan. 1, 2009, 186 drug offenders -- most crack dealers and many with accompanying firearm convictions -- were sentenced in U.S. District Court in Richmond to a combined 2,000 years in prison plus one life sentence....

"There's no doubt to us that the city is fundamentally a safer place than it was a dozen years ago," said Neil H. MacBride, the U.S. attorney for the Eastern District. He points out that since 1994, the long-term homicide trend here is down....

Learned Barry, Richmond's deputy commonwealth's attorney in charge of homicide prosecutions, said, "What has happened, especially with the help of the feds, is we are catching these guys and they're staying off the streets much longer than they did 10 years ago. "When they identify these violent drug dealers and target them -- they're gone, we don't see them again for a long time," he said.

The degree to which drug and firearms convictions reduce violence is unclear, many criminologists say.  Homicides dropped in Richmond, but they also did in some other cities where tough laws were used to a lesser extent.  And while taking drug dealers off the streets improves the quality of life in a community, taking large numbers of young men out of the community can harm it.

Todd R. Clear, dean of the school of criminal justice at Rutgers University, has studied the impact on communities where young men churn in and out of jails and prisons.  Removing killers and rapists has a high public safety payoff, but the benefits diminish as people are removed for lesser crimes, he said.  "There all these sort of ripple effects [so] that even if you did get an immediate, short-term impact on crime, you also have long-term, generational, infrastructural kinds of effects on community life that are extremely troubling," Clear said.

Those effects include more single-parent households and the loss of protection, money and child care for mothers.  Also, children with a parent or parents in prison are more likely to wind up there themselves, he said.

Then there's also the cost of imprisonment -- $51 million for just 15 month's worth of federal drug-related prosecutions from federal court in Richmond.  "It just boggles my mind.  What would happen if you had that money available for other things.  If you told the community, 'Look, we've got $51 million . . . is this what you want to use it for?  My guess is they would have other priorities," Clear said....

In 2007, the commission amended the crack guidelines, permitting sentence reductions for 19,500 crack offenders convicted since 1992.  The Eastern District of Virginia led all districts in the country with 1,499 eligible offenders, or 7.2 percent of the national total.  "That's because crack makes up such a large amount of the drug-trafficking docket in the Eastern District of Virginia, particularly in Richmond," said Michael Nachmanoff of Alexandria, the chief public defender for the district.

According to figures from the U.S. Attorney's office, of the 186 drug cases that led to prison time in the Richmond division last year and the first three months of this year, at least 113 were for crack and 36 for powder cocaine.  The average sentence for crack violators was just under 11 years; 18 of them were sentenced to more than 20 years and one to life.

Nachmanoff, like Clear, believes, "the notion that the only way to solve problems . . . we see in the city of Richmond and other urban centers is by locking up generations of young African-Americans for 10, 15, 20 years, I think was really false."...

Generally, Virginia guideline sentences for drug offenses are significantly lower than federal ones. As a result, Richmond police work closely with federal authorities and sometimes steer troublemakers into federal court where they can be locked up for longer periods.

Capt. Roger Russell, head of the Richmond police department's narcotics unit, said, "We look at what court is going to offer the best solution to the problem." "The working relationship that we have, whether it be with our commonwealth attorney's office or with our federal partners, has really had a significant impact on violent crime in this city," Russell said.

Bullard said that some critics of drug sentencing have a simplistic view of the situation that does not take into account all the facts. "Usually there's more to the story than, 'Hey, a guy with no record is given five years for 5 grams of crack,'" Bullard said. There are violent criminals who have little or no record, he said.

Because state sentences are lower than federal ones, Bullard said his office has been innovative. Among other things, city prosecutors can bring evidence of prior crimes, even in cases where there has not been a conviction, to the court's attention prior to sentencing. "Our average sentence increased by over 50 percent during 2008 and that gain was largely maintained in 2009," Bullard said. "Again, our sentences are not nearly what the federal sentences are, but that's still a significant increase and it comes from that philosophy of trying to make sure violent drug dealers are taken off the street for longer periods of time," Bullard said.

City prosecutors last year won state convictions for felony drug distribution or possession with intent to distribute against almost 400 people -- a 10-year high. The sentences added up to 850 years.

City felony drug-possession cases -- as opposed to drug-distribution cases -- fell by more than 31 percent last year, to 463, from 2008 when an eight-year high was reached.  New programs also are being tried as a way to eliminate open-air drug markets. Bullard said drug activities have horrid impacts on neighborhoods.

He said there may be low-level individuals hit with a heavy minimum crack sentence in federal court. But for the most part, he said state and federal authorities do not have the time, resources or prison space to target low-level offenders for long terms behind bars. Unlike federal law, Virginia law makes no distinction between crack or powder cocaine sentences.

June 22, 2010 in Drug Offense Sentencing, Federal Sentencing Guidelines, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (11) | TrackBack

Some notable reactions and coverage of the severe white-collar sentence for Sholom Rubashkin

As reported here yesterday, a high-profile white-collar case culminated in a very long sentence for Sholom Rubashkin for his role in the financial fraud at a former Iowa kosher plant Agriprocessors Inc. This sentence has already produced notable reactions, as this abridged press review highlights:

Though a lot could and surely will be said about the long prison sentence imposed on Sholom Rubashkin, those who focus on sentencing patterns might especially want to recall that the sentence of 27 years given to Rubashkin is longer than the prison sentences imposed on the heads of Enron (Jeff Skilling) and WorldCom (Bernie Ebbers) and Adelphia (John and Tim Rigas).

June 22, 2010 in Offender Characteristics, Offense Characteristics, Scope of Imprisonment, White-collar sentencing | Permalink | Comments (3) | TrackBack

Seventh Circuit finds inadequate district court's sparse justification for way below-guideline sentence

The Seventh Circuit in US v. Brown, No. 09-1028 (7th Cir. June 22, 2010) (available here), provides district judges with yet another important reminder that they need to explain fully the bases for their sentencing judgments. Here is how the opinion in Brown gets started:

When Rodney Brown pleaded guilty to distributing more than five grams of crack cocaine, it looked as if he was about to go to prison for a long time.  Brown had a prior drug conviction, and so he faced a mandatory minimum sentence of 120 months’ imprisonment.  To make matters worse, his two previous convictions for aggravated assault qualified him as a career offender for purposes of § 4B1.1 of the U.S. Sentencing Guidelines, and this bumped up his recommended guidelines sentence to 262-327 months’ imprisonment.

At the sentencing hearing, the district court limited itself to making a few negative remarks about Brown’s character and capacity for change.  It then surprised the parties by sentencing Brown to the lowest possible point available to it, the 120-month mandatory minimum, a full 142 months below the low end of the guidelines range.  In its terse explanation of the sentence, the district court mentioned only Brown’s age (40 years old), the short length of his previous state sentences, and the conditions of his upbringing.

The government has appealed the sentence.  Although a sentence so far below the recommended guidelines range lies within the court’s power, and may even have been justified in this case, the record is too spare to support that conclusion at this point.  We therefore vacate Brown’s sentence and remand for resentencing.

In the weeks after Booker was handed down, I highlighted in this post that district judges should "Always remember to show your work."  More than five years after Booker, it seems that some district judges are still struggling to understand that this is classic suggestion for math class remains very important for modern federal sentencing.

June 22, 2010 in Booker in district courts, Booker in the Circuits, Sentences Reconsidered | Permalink | Comments (2) | TrackBack

Sixth Circuit panel finds five-day sentence for child porn offense substantively unreasonable

The Sixth Circuit handed down US v. Christman, No. 08-4474 (6th Cir. June 22, 2010) (available here), yet another notable sentencing decision in yet another ugly child porn case.  The case appears to have been handled poorly in a variety of ways, as evidence by this explanation at the start of the opinion:

Richard Christman pled guilty to two counts of possessing child pornography in January 2005 pursuant to a plea agreement calling for dismissal of the remaining counts against him, four counts of distribution child pornography. The district court sentenced him to 57 months in prison, a within- Guidelines sentence at the bottom of the 57-71 month recommended range. Several months later, the district court admitted that it had relied on impermissible information outside the pre-sentence report in sentencing Christman, and Christman appealed his sentence to this Court. A panel of this Court agreed, and it vacated and remanded the case for re-sentencing.

At re-sentencing, the district court, over the prosecution’s objection, sentenced Christman to five days in prison—that is, the time that he had spent in custody when first arrested—and fifteen years of supervised release. The court found that this sentence was warranted because Christman had severe back pain, he was his elderly, ailing mother’s primary caregiver, his family believed that he was remorseful, he was a musician and composer, and he had complied with the restrictions of his release on bail. The government appeals, arguing that the district court’s imposition of the nominal prison term cannot reasonably be justified by the factors identified at re-sentencing.

For the reasons set forth below, we find that the sentence was substantively unreasonable, VACATE the new sentence, and REMAND for re-sentencing in light of this opinion. We also direct that this case be assigned to a different judge for resentencing.

June 22, 2010 in Booker in district courts, Booker in the Circuits, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (5) | TrackBack

Should we laud or lament self-help and shaming sentences for shoplifters?

Today's New York Times has this fascinating article, headlined "Stores’ Treatment of Shoplifters Tests Rights," about a kind of corporate punishment for shoplifters that has being imported to New York City from China.  The full article is a worth reading, and this start provides a window into all the interesting legal issues the piece raises:

The A & N Food Market on Main Street in Flushing, Queens, has an almost entirely Chinese clientele.  The inventory includes live eels, turtles and frogs, frozen duck tongue and canned congee.  These goods, like products sold in every neighborhood of the city, attract their share of shoplifters.  But A & N Food Market has an unusual way of dealing with the problem.

First, suspected shoplifters caught by the store’s security guards or staff members have their identification seized.  Then, they are photographed holding up the items they are accused of trying to steal.  Finally, workers at the store threaten to display the photographs to embarrass them, and to call the police — unless the accused thieves hand over money.

“We usually fine them $400,” said Tem Shieh, 60, the manager, who keeps track of customers on 30 video monitors in the store’s surveillance system.  “If they don’t have the money, then we usually hold their identification and give them a chance to go get it.”

The practice of catching suspected shoplifters and demanding payment is an import from China, several experts in retail loss prevention said, where there is a traditional slogan that some storekeepers post: “Steal one, fine 10.”  Whether this practice is legal in the United States is open to interpretation.

New York State law allows “shopkeepers’ privileges” that fall somewhere between the prerogatives of the police and a citizen’s arrest.  The law also details “civil recovery statutes,” by which retailers may use the threat of a civil lawsuit to recover substantial settlements for even minor thievery.  But threatening to report that someone has committed a crime can be considered a form of extortion.

Neither the Police Department nor the Queens district attorney’s office said any complaints about the practice had been received.  But its critics argue that the accused shoplifters are deprived of basic civil rights and the usual assurances in public legal proceedings, like the right to a lawyer and freedom from coercion, and are not being held by adequately trained security officials with proper oversight.

“If a store owner says he’ll call the police unless you pay up, that’s extortion, that’s illegal,” said Steven Wong, a community advocate in Chinatown, sitting in his office above a restaurant on Chatham Square.  “And putting up pictures in public, calling someone a thief who has never even been formally charged, that’s a violation of their civil rights.”

June 22, 2010 in Criminal Sentences Alternatives, Offense Characteristics, Who Sentences? | Permalink | Comments (9) | TrackBack

Eleventh Circuit gives the "Great Writ" some notable life

A helpful reader alterted me to a "blockbuster of an Eleventh Circuit opinion that just came down" late yesterday and that give habeas review an equitable jolt. The procedural details of the ruling in Gilbert v. US, No. 09-12513 (11th Cir. June 21, 2010) (available here), are complicated, but this paragraph highlights why this ruling is so notable:

The government’s position, however, is that, despite the error in his sentence, Gilbert is without a legal remedy, his sentence must stand, and he must remain incarcerated. Although made in good faith and based upon its understanding of the law, the government’s statement at oral argument that Gilbert is entitled to no relief from an illegal sentence cannot be the law.  The common law tradition of the “Great Writ” cannot be so moribund, so shackled by the chains of procedural bars and rigid gatekeeping that this court is not authorized to grant relief to one who is “in custody in violation of the Constitution or laws or treaties of the United States.”  See 28 U.S. C. § 2241. Fiat Justitia, Ruat Coelum.[FN7]

[FN7] “Let right be done, though the heavens should fall.” Branch. Princ. 161.

June 22, 2010 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

"Obama slowly puts his mark on federal courts"

Active-appeals-court-judges The title of this post is the headline of this extended article at MSNBC discussing the slow increase in the number of federal circuit court judges appointed by President Obama.  Here are the basics:

Democrats control the White House and have the largest congressional majorities enjoyed by a chief executive in decades. But President Barack Obama isn't off to a brisk pace when it comes to putting his imprint on the third branch of government — the federal courts — and some of his allies are disappointed, particularly with the prospect of a slimmed-down Senate majority after the midterm elections.

At the highest level, the Supreme Court, Obama is already having a major impact. His first nominee, Sonia Sotomayor, was confirmed to the high court last year and his second, Elena Kagan, seems well on her way to confirmation. Obama's predecessor, George W. Bush, did not get his second (and final) justice until 2006, six years into his presidency.

But the vast majority of federal cases never reach the high court; they are decided by appeals court judges, making appointments to that level crucial to determining a president's judicial legacy.

The Senate has confirmed nine of Obama’s 21 appeals court nominees. That compares with eight out of 30 appeals court nominees confirmed for Bush at the same point in his first term as president.

But unlike Bush, Obama was elected with a majority of the popular vote and works with a Senate in which his party has 59 senators — at least for now. “You’d expect President Obama, elected with a comfortable margin and with the number of Democratic senators there now are, to have had a lot more judges confirmed by now,” said Russell Wheeler, former deputy director of the Federal Judicial Center, the research agency for the federal courts. Wheeler is a fellow at the Brookings Institution.

Eleven prominent liberal law professors complained to Obama in an open letter in February that “your Administration must act with far more energy and dispatch in the vitally important task of nominating and confirming federal judges.”

The president has nominated seven appeals court judges since then, leaving six appeals court vacancies for which he has yet to nominate replacements. And Obama has not sent the Senate any nominees for the two vacancies on the D.C. circuit court, often seen as the most powerful appeals court. One vacancy dates to 2005, the other to 2008.

While a president controls the nominations, he cannot dictate the pace of confirmation. A determined Republican minority and a Senate preoccupied with other items have stymied quick action on some nominees.

Seven appeals court nominees have won Judiciary Committee approval but await a floor vote. Sixth Circuit appeals court nominee Jane Stranch has had the longest wait: she won approval by the committee last November but hasn’t gotten a floor vote.

Of course, federal sentencing fans know that appointments to the district courts are more likely to impact federal sentencing realities more than appointments to the circuits.  Nevertheless, as I noted in a post on election night, over time the Obama Administration is likely to impact federal sentencing law and policy more through its appointments than through any distinct policy initiative.

Some related new and old posts:

June 22, 2010 in Who Sentences? | Permalink | Comments (0) | TrackBack

Times Square bomber pleads guilty to all counts, including those with mandatory life terms

This morning's New York Times has this report, headlined "Guilty Plea in Times Square Bomb Plot," on the latest suprising legal turn in a high-profile terror prosecution.  Here are the particulars:

The suspect in the failed Times Square bombing pleaded guilty on Monday, an abrupt and expedited end to a terrorism case that extended to Pakistan and an Islamic militant group there.  The defendant, Faisal Shahzad, 30, listened as each of 10 counts was read to him in Federal District Court in Manhattan, and indicated he understood the charges and penalties he faced.

Mr. Shahzad recounted how and why he conceived the plot, traveling to Pakistan last year, joining the Taliban and receiving training in how to construct a bomb.  And despite his admission of guilt and his extended cooperation with the authorities since his arrest, Mr. Shahzad was unapologetic, characterizing himself as “part of the answer to the U.S. terrorizing the Muslim nations and the Muslim people.”

“I want to plead guilty, and I’m going to plead guilty 100 times over,” he said, “because until the hour the U.S. pulls its forces from Iraq and Afghanistan, and stops the drone strikes in Somalia and Yemen and in Pakistan, and stops the occupation of Muslim lands, and stops killing the Muslims, and stops reporting the Muslims to its government, we will be attacking U.S., and I plead guilty to that.”...

Wearing a white head covering, Mr. Shahzad stood for more than half an hour answering the judge’s questions about his motivations, his background and even his family. “I had a wife and two beautiful kids,” he said, adding that they had returned to Pakistan to be with his parents.

And it was seemingly with equanimity that Mr. Shahzad spoke of his plan to detonate a car bomb in New York City. “I chose the center of Times Square,” he explained.  “Were there a lot of people in the street?” Judge Cedarbaum asked. “Yes,” Mr. Shahzad replied. “Obviously the time, it was evening, and obviously it was a Saturday, so that’s the time I chose.”

“You wanted to injure a lot of people?” the judge asked.  Mr. Shahzad said that he had, that he wanted “to injure people or kill people.”   But he said “one has to understand where I’m coming from.” He said that he considered himself “a Muslim soldier,” and that United States and NATO forces had attacked Muslim lands.

Judge Cedarbaum interjected: “But not the people who were walking in Times Square that night. Did you look around to see who they were?”  Mr. Shahzad replied, “Well, the people select the government; we consider them all the same.”

“Including the children?” the judge asked.  “Well, the drone hits in Afghanistan and Iraq,” Mr. Shahzad replied, “they don’t see children; they don’t see anybody.  They kill women, children.  They kill everybody.  It’s a war.  And in war, they kill people. They’re killing all Muslims.”

The guilty plea was consistent with Mr. Shahzad’s behavior since his May 3 arrest, when the authorities say he began cooperating with them for more than two weeks without counsel and waived his Miranda rights.  One question was whether Mr. Shahzad would seek leniency in sentencing in return for his assistance.

The answer seemed to come after the hearing, when the United States attorney, Preet Bharara, released a letter that had been sent to Mr. Shahzad’s lawyers.  It made clear that there was no plea deal, and that in choosing to plead guilty to all 10 counts, Mr. Shahzad faced a mandatory life term, the maximum sentence for which he is eligible.

“Faisal Shahzad plotted and launched an attack that could have led to serious loss of life,” Attorney General Eric H. Holder Jr. said, “and today the American criminal justice system ensured that he will pay the price for his actions.”

Mr. Bharara said the investigation was continuing; his office refused to comment on whether Mr. Shahzad was continuing to cooperate.  Judge Cedarbaum scheduled the sentencing for Oct. 5. Mr. Shahzad’s lawyer, Philip L. Weinstein, had no comment.

June 22, 2010 in Mandatory minimum sentencing statutes, Offense Characteristics | Permalink | Comments (1) | TrackBack

June 21, 2010

Ninth Circuit en banc habeas dissent assails state judge plea involvement as "judicial extortion"

Today the Ninth Circuit handed down a divided en banc habeas ruling in Murdoch v. Castro, No. 05-55665 (9th Cir. June 21, 2010) (available here), which upholds a California state conviction over a potent lead dissent authored by Chief Judge Kozinski.  Here is how that dissent gets started:

If it wasn’t for bad luck, Murdoch wouldn’t have no luck at all. He’s wakin’ up this mornin’ in jail when there’s strong proof he ain’t done nothing wrong.  I would certainly defer to a jury’s contrary verdict if it had seen this evidence and convicted Murdoch after a fair trial, presided over by a fair judge, followed by an appeal where the justices considered all of his constitutional claims.  But Murdoch had none of these.

Start with the trial judge: He was so worried that the prosecution couldn’t put on sufficient evidence to convict Murdoch that he sentenced Murdoch’s alleged confederate (Dinardo) to life in prison, but promised to give him a big break if he testified against Murdoch.  True to his word, right after Dinardo fingered Murdoch, and as Murdoch’s jury was retiring to deliberate, the judge rewarded Dinardo by reducing his life sentence to a walk-away twelve years — or, as Dinardo himself estimated, actual time served of about five years.

Put yourself in Dinardo’s shoes: You’ve just been sentenced to spend the rest of your days behind bars, never again to hold your infant daughter in your arms.  But the judge immediately dangles the promise of leaving prison and resuming a normal life before she turns eight, if only you help nail Murdoch.  Prosecutors are known to offer defendants a break if they testify truthfully against a co-defendant.  For a judge to goad someone he’s just given a life sentence into helping the prosecution by promising to give him his life back, but only if he helps finger the defendant, is judicial extortion. You’d have to be more than human not to do or say whatever it takes to grab that brass ring.

Not only did the trial judge strong-arm Dinardo into testifying, he prevented the defense from seeing — and so from using for cross-examination — a letter Dinardo had written a year earlier exculpating Murdoch and disclosing that the police had coerced Dinardo into making false accusations.

June 21, 2010 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (26) | TrackBack

Kosher plant chief Sholom Rubashkin sentenced to 27 years imprisonment

This local newspaper entry, which is headlined "Sholom Rubashkin to receive 27-year prison sentence," reports on the severe sentencing outcome in a high-profile federal white-collar case out of Iowa.  Here are the early details:

Sholom Rubashkin will receive a 27-year federal prison sentence on Tuesday for his leadership in the financial fraud scandal at Agriprocessors Inc., a judge declared today. U.S. District Judge Linda Reade will impose a 324-month prison term for the former eastern Iowa meat plant mogul, followed by 5 years of supervised release, according to a ruling filed this morning.

She also will order Rubashkin to pay $18.5 million to First Bank Business Capital, the plant’s largest lender; $8.3 million to MB Financial Bank, another lender; and $3,800 to Waverly Sales, Inc., which received late payments from the plant for cattle.

Rubashkin was convicted of 86 financial fraud charges last November for leading the scheme to defraud the banks.  A South Dakota jury concluded at trial that Rubashkin had ordered employees to create bogus financial documents to collect advances on a revolving loan. The plan collapsed shortly after a May 2008 immigration raid at Agriprocessors in Postville, when the slaughterhouse plummeted into bankruptcy.

Reade rejected defense arguments that Rubashkin lacked the authority to stop the criminal conduct at the Postville slaughterhouse founded by his father. She cited 11 examples from his trial, including testimony that he directed employees to create false sales records, and helped illegal immigrant employees secure false work papers.

Rubashkin’s “degree of control and authority was close to absolute,” Reade wrote in the 52-page ruling. “He told his employees when, where and how to commit the various crimes.” Reade said Rubashkin lied at his trial when he testified that he never told employees to create fake sales records and customer checks. His testimony conflicted with former employee accounts that were more believable, she said.

She also rejected defense arguments for a lesser sentence because of his charitable work, his relationship with his 16-year-old autistic son, Moishe, and other family responsibilities. “Defendant devotes a substantial amount of evidence and argument to his contention that his offenses of conviction were not motivated out of a sense of personal greed, but rather, out of a sense of duty to maintain his family business for religious purposes,” Reade wrote.

“No matter Defendant’s motive, he defrauded the victim banks out of millions of dollars. He unlawfully placed his family business’s interest above the victim banks’ interest. His family business and he personally benefitted at the expense of all the victim banks’ innocent shareholders.”

She later added: “Additionally, it is entirely possible that a number of Defendant’s charitable deeds were funded with proceeds from his crimes. It is far easier to be generous with someone else’s money instead of one’s own.”

Prosecutors had asked Reade to impose a 25-year sentence. Rubashkin’s attorneys requested no more than six years. Defense lawyers said they plan to appeal Rubashkin’s conviction and sentence. “We believe that the sentence is greater than necessary,” said Rubashkin lawyer Guy Cook, of Des Moines. “It’s even greater than the government asked for. It’s unfair and excessive. It’s essentially a life sentence for a 51-year-old man, and it’s not in the public interest.”

Reade said she will read her sentence memorandum in federal court Tuesday in Cedar Rapids. Prosecutors and defense attorneys have scheduled press conferences afterward to speak about the case.

It appears that Judge Reade rejected virtually all of the defense's guideline-based and non-guideline arguments for a lesser sentence for Sholom Rubashkin.  It also seems that she wrote a very lengthy sentencing opinion to explain the exercise of her sentencing judgment.  I will post that opinion when I can track down a copy.

Related posts on the Rubashkin case:

UPDATE:  I pulled the sentencing opinion in this case that was filled this morning off PACER, and I have provided it for downloading here: Download Rubashkin sentencing opinion

June 21, 2010 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (14) | TrackBack

Show me the role reversal when sentencing guidelines are more lenient

Anyone familiar with advocacy and debate surrounding federal sentencing knows that federal prosecutors are frequently extolling the virtue of sentencing guidelines and that defense attorenys are frequently excoriating the guidelines.  Though the prosecutors claim they are fans of crime-based consistency and defenders claim they are eager for consideration of individual circumstances, what really seem to be driving the advocacy and debate is how relatively severe the sentences are set under the federal guidelines for most crimes.

Some new proof that debates over the virtues and vices of guidelines are really driven by views about sentence severity and leniency is emerging from the Show Me state these days.  This local article, headlined "Missouri overhauling controversial sentencing guidelines," spotlights the role reversal in who is articulating which talking points about sentencing guidelines when the guidelines seem to be too lenient rather than too tough in most cases:

The Missouri Legislature requires the Missouri Sentencing Advisory Commission to figure averages of actual sentences every year for every possible crime, and from those to calculate ranges of "recommended sentences."

State Supreme Court Judge Michael Wolff, who heads the commission, has appointed a subcommittee to review the process. The results could be small tweaks to the 175-page sentencing guide or a complete overhaul. "The subcommittee can take a fresh look at it and make sure we're presenting information in the sentencing process that will be helpful for the judge," Wolff said.

For years, many Missouri prosecutors have called guidelines "meaningless" and "a waste of resources." They say the system is unfair because officials lump categories of crimes together, and some crimes are not charged often enough to make a meaningful calculation.

The guidelines do not take into account when a defendant is convicted of multiple crimes at the same time, critics say, and they never call for the maximum sentence allowed by law. "There is simply no way to provide for enough variables in any recommendations that make it meaningful in sentencing," said Zahnd, the Platte County prosecutor.

St. Louis Circuit Attorney Jennifer Joyce said she has been against the guidelines since getting elected more than a decade ago. "Each case needs to be evaluated on its own merits," she said. "There is no formula that is going to ensure that justice is done."

She offered the example of Tyran Hubbard, who pleaded guilty in 2007 in St. Louis Circuit Court of forcible rape and sodomy.  He had raped and beaten a female college student at gunpoint in her apartment, was interrupted attempting a similar crime less than a week later and eventually was arrested lurking near apartments where many college students live.  The guidelines recommended 12 years in prison. Judge Timothy J. Wilson gave Hubbard 30 years.

The guidelines do have supporters, who argue that the information empowers judges and sets realistic expectations for people not familiar with the judicial process.  St. Louis Public Defender Mary Fox said that defense attorneys often highlight recommended sentences when advocating for their clients.  "They're reasonable," Fox said. "They are a good starting point; then a judge has to take a look at each case individually."  Fox said the guidelines took into account plenty of factors — including criminal history, education, age and employment.

Wolff, the Supreme Court judge, said data showed that 90 percent of Missouri sentences end up within the recommended range.  He said only 5 percent of defendants were sent to prison when the guidelines recommended probation.

"This is just a piece of information about what judges are doing in the whole, not what ought to happen in any given cases," Wolff said. "We make it clear that the judge is free to give a more harsh or lenient sentence within the statutes." He added, "You can argue from any individual case that a recommendation seems too lenient."

James McConnell, the prosecutor in Shelby County, who will serve on the subcommittee, said the debate usually came over violent or sex crimes.  He said there was not much disagreement about sentences for property crimes.  Some lawmakers have proposed eliminating recommendations for the most serious crimes, McConnell said. "Those are the ones in which most of the time prosecutors don't think they make sense," he explained.

As federal sentencing fans know, it is the prosecutors in the federal system who generally argue that the federal guidelines provide a reasonable sentencing starting point, and it is the defense attorney who are heard to complain that no formula can ensure sentencing justice.  But, in Missouri, since the starting points provided by the state advisory guidelines are more to the defense's liking, we instead get the roles reversed and the state defenders are defending guidelines against (over-stated) attacks by state prosecutors.

June 21, 2010 in Advisory Sentencing Guidelines, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Some notable legal news concerning capital case handling

Thanks to law.com, we can all read two new pieces that serve as a kind of follow-up to the controversial ways in which a couple of high-profile capital cases were handed.  Here are the headlines with links:

June 21, 2010 in Death Penalty Reforms | Permalink | Comments (0) | TrackBack

A mostly civil morning at the Supreme Court, with a terror prosecution ruling on the side

As super SCOTUS fans know, we are coming down to the wire with the current Supreme Court Term.  Though the Court has already resolved most of the top sentencing cases I flagged here at the start of the Term, criminal justice fans still have good reason to be eagerly awaiting rulings on honest services fraud and Second Amendment incorporation and a few other crime cases.  However, as SCOTUSblog is reporting this morning, today the Supreme Court dealt mostly with the civil side of its docket and thus we will have to wait until this Thursday or next Monday (or maybe even later) for some big criminal justice fun.

Today did bring a criminal justice ruling concerning First Amendment issue in Holder v. Humanitarian Law Project. Here is how SCOTUSblog report the ruling:

Chief Justice Roberts writes for the majority, affirming in part, reversing in part, and remanding Monday. The vote is 6-3, with Breyer dissenting, joined by Ginsburg and Sotomayor

The Court rules that the federal material support statute is constitutional as applied to the particular kinds of support that the parties in this case seek to provide to foreign terrorist organizations. The Court concludes that, as applied to these individuals and groups, the statute does not violate the free speech clause of the First Amendment.

The full opinion in HLP is available here.

June 21, 2010 in Offense Characteristics, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

SCOTUS grants cert on another AEDPA habeas issue

SCOTUSblog is reporting this morning that the Supreme Court has granted cert in Walker v. Martin, Docket No: 09-996, which presents this complicated federal habeas issue emerging from the Ninth Circuit (explained here):

Whether, in federal habeas corpus proceedings, a state law under which a prisoner may be barred from collaterally attacking his conviction when the prisoner “substantially delayed” filing his habeas petition is “inadequate” to support a procedural bar because (1) the federal court believes that the rule is vague and (2) the state failed to prove that its courts “consistently” exercised their discretion when applying the rule in other cases.

For quite some time in recent cert grants, the Justices seemed more interested in reviewing meatly substantive federal criminal law issues. But it seems like the ever-intricate issues presented by the federal AEDPA rules surrounding habeas review of state convictions keep drawing the Justices back in.

June 21, 2010 in Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack

A year after SCOTUS intervenes, Troy Davis innocence hearing about to start

As detailed in this local article, which is headlined "Court to hear innocence claim in Ga. death case," a high-profile capital case that prompted an extraordinary move by the Supreme Court is finally moving forward this week. Here are the basics:

Death penalty appeals from condemned inmates usually hinge on technicalities, legal hiccups and procedural errors. But this week a federal judge will hear evidence from a death row inmate convicted of gunning down a Savannah police officer that will center on a more fundamental question: is he innocent?

Troy Anthony Davis' attorneys and legal experts alike say such an argument is highly unusual. And many say the hearing, scheduled Wednesday in U.S. District Court in Savannah, marks the first time the U.S. Supreme Court has ordered such a hearing in a death penalty case.

Then again, just about everything surrounding Davis' case has been extraordinary. He was sentenced to die in 1991 for the shooting death of Savannah police officer Mark MacPhail, who was killed in 1989 while working off-duty at a bus station after he rushed to the aid of a homeless man who had been attacked.

Since then, the case has become a national flashpoint for death penalty critics who argue Davis is the victim of mistaken identity. Donald E. Wilkes Jr., a University of Georgia law professor and expert on death penalty appeals, said federal courts normally look only at questions of due process and violations of the accused's right to a fair trial. Claims from inmates such as Davis, seeking a fresh look at their guilt or innocence, are routinely rejected by federal judges, he said....

Davis' lawyers say seven witnesses from his trial have either contradicted their testimony or recanted it. Several people have also signed affidavits since the trial saying they heard another man confess to pulling the trigger.

His execution has been delayed three times, partly because of these concerns. In August, the Supreme Court ordered the new hearing that gives Davis the chance to present the testimony that his attorneys hope will prove he was mistakenly identified as MacPhail's killer....

According to court filings, Davis' attorneys plan to call 14 witnesses during the Wednesday hearing. Several are trial witnesses who have recanted all or part of their testimony. Others claim someone other than Davis confessed to the crime. "Anything other than a very strong, overwhelming case is probably not going to suffice," Wilkes said.

The Supreme Court said the evidence must "clearly establish" Davis' innocence, but what that means remains unclear.... The result of the hearing could force the Supreme Court to decide whether a death penalty defendant can raise what attorneys call a free-standing claim of innocence -- that is, a stand-alone claim that the client is innocent, not that the sentence should be commuted on procedural grounds.

Related Davis case posts:

June 21, 2010 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0) | TrackBack

You make the sentencing call: resentencing of Qwest's Nacchio on tap for this week

As detailed in this Denver Post article, which is headlined "Former Qwest CEO Nacchio awaits resentencing," a high-profile white-collar defendant is scheduled to be resentenced later this week. Here are all the details:

Former Qwest chief executive Joe Nacchio, 14 months into a six-year prison term for criminal insider trading, will receive a new sentence Thursday. What that sentence will be is anybody's guess.

Nacchio attorney Sean Berkowitz contends it should be less than three years and five months. The government argues federal guidelines allow for a sentence of as long as 12 years and seven months.

U.S. District Judge Marcia Krieger has set aside three days, Tuesday through Thursday, to resolve the matter.

A federal appeals panel last summer granted Nacchio a new sentence, ruling that trial judge Edward Nottingham miscalculated how much Nacchio gained from illegally selling Qwest stock based on nonpublic information that the company was faltering financially.  The amount of money a defendant gains from a crime is a key sentencing factor in securities cases. Nottingham determined Nacchio gained $28 million.

An analysis by government expert Anjan Thakor, a finance professor at Washington University in St. Louis, says Nacchio gained between $23.5 million to $32.9 million.  Thakor is expected to testify Tuesday.  Nacchio's expert, Northwestern University business law professor Daniel Fischel, pegs that figure at $1.8 million. Fischel is expected to testify Wednesday....

Under federal sentencing guidelines, the amount of gain and factors including the type of crime determine the range of the prison term a judge should impose.  The guidelines are advisory, not mandatory.  But a judge must state reasons for imposing a sentence outside the range.

Nacchio's initial sentence was based on 2000 sentencing guidelines because his illegal stock sales occurred in 2001. The government contends Krieger should use 2006 guidelines, which are harsher.

In a court filing pushing for a lighter sentence, Berkowitz portrays Nacchio as a charitable family man who has already suffered enough. "He has lost his career, his livelihood, his reputation, and his freedom," the filing states. "His life has already been forever changed."

The government claims a harsher sentence is warranted because Nacchio's actions "reflect substantial greed" and the offense "is far more aggravated" because of his leadership position at Qwest.  Nacchio and his wife had a combined net worth of $421 million in April 2001, around the time of the illegal stock sales, according to a court filing.

In addition to the prison term, Nacchio was ordered to pay $19 million in fines and forfeit $52 million — the gross amount of his stock sales.  Berkowitz says the fine should be $3.6 million or less and his fine and forfeiture combined should be no more than twice what Krieger determines to be the gain amount.  The government says Nacchio should pay $19 million in fines and $44 million in forfeitures.

Nacchio, who turns 61 Tuesday and is serving time at a federal prison camp in Minersville, Pa., will not attend the re-sentencing hearings, which will be in U.S. District Court in Denver.

Though only those directly involved in the resentencing hearings will hear all the evidence needed to make a fully informed decision, the rest of us certainly can have ideas about what kind of sentence may be "sufficient but not greater than necessary" in this high-profile white-collar case.  So, dear readers, you make the call: what sentence would you be inclined to impose on Joe Nacchio?

June 21, 2010 in Booker in district courts, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, White-collar sentencing | Permalink | Comments (0) | TrackBack

June 20, 2010

Is fostering fatherhood an effective means to promote rehabilitation?

The question in the title of this post is inspited by this recent USA Today article, which is headlined "Prison dads learn meaning of 'father'" and which seems like a fitting post in honor of today's Hallmark holiday. Here is an excerpt:

More than 1.7 million children across the USA have a parent in U.S. prisons, according to the Bureau of Justice Statistics. T he number of children with a father in prison grew by 77% from 1991 through mid-2007. And those children are two to three more times likely to wind up behind bars themselves, says Christopher Wildeman, a University of Michigan sociologist who has studied the effects of imprisoned parents.

To try to snap that trend, Angola and other prisons across the country sponsor two programs aimed at reconnecting prison dads with their children: Returning Hearts, a day-long carnival-like celebration where inmates spend eight hours with their kids, and Malachi Dads, a year-long training session that uses Bible passages to help improve inmates' parenting skills.

Inmates must show good behavior to participate in the programs, Warden Burl Cain says. Once they feel reconnected to their family, their attitudes improve, he says.  Around 2,500 inmates have participated in Returning Hearts since it began in 2005.  Malachi, which started in 2007, currently has 119 men.  "The ones who were problematic before are not problematic anymore," Cain says. "Prison didn't straighten them out; their kids straightened them out."...

Rehabilitating prisoners through better fathering is a growing movement, says Roland Warren, president of the National Fatherhood Initiative.  InsideOut Dad, a program run by the initiative designed to connect inmates with their families, started in 2004 at a handful of facilities and has spread to more than 400 prisons and jails nationwide, he says. "This is a paradigm shift," Warren says.  "People are saying we have to figure out a way to reduce recidivism.  Connecting them to family and community is a key way to do that."

June 20, 2010 in Offender Characteristics, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (2) | TrackBack

"Counting Victims and Multiplying Counts: Business Robbery, Faux Victims, and Draconian Punishment"

The title of this post is the title of this intriguing new piece by Harry Caldwell and Jennifer Allison available here via SSRN.  Here is the abstract:

This Article offers a 50-state survey of robbery statutes, specifically examining the charging and sentencing regimes for the robbery of a business during which multiple people, including employees and customers, are threatened.  It begins by presenting a historical overview of the crime of robbery, focusing specifically on the robbery of a business.  Then, the survey results are described, and specific problems related to multiplicity of punishment are discussed.  Finally, a reasonable and ideal model of business robbery jurisprudence is offered -- one that focuses on punishing the defendant proportionally to the severity of the crime committed, and that furthers the intention of criminal law to protect innocent people for the benefit of society.

June 20, 2010 in Offense Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack