June 26, 2010
Texas state judge schedules hearing on whether there is real risk of executing the innocentThis 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?"
A (record?) long probation sentence for Florida lawyer who stole from his clientsThis 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 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.
A notable Sixth Circuit concurrence lamenting Dillon and modern severityConcurring 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.
Alleged hacker learning severe punishment can follow federal plea refusalAnyone 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 24, 2010
This is Fox News on drugs ... lots of questions
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:
- Medical Marijuana Coming to State Near You?
- Effort to Stop Legalizing Medical Marijuana
- Medical cannabis can cost parents in custody disputes; does it endanger kids?
- Going to Pot: The Science Behind Marijuana
- Will Recreational Pot Use Become Legal?
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:
- Should and will California's voters legalize marijuana in that state this November?
- "Legalizing marijuana not really a dopey idea"
- Might Sarah Palin's sensible points about pot get Tea Party types to push for sensible drug reforms?
- Thoughtful academic thoughts on ending marijuana prohibitions
- Green tea party: will Glenn Beck or Sarah Palin or other professed liberty lovers support ending pot prohibition in California?
- Do "mama grizzlies" have a particular approach to crime and punishment issues?
- NPR's interesting coverage of "The New Marijuana"
- How can and should we assess the "success" of medical marijuana and pot prohibition reform efforts?
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.
Much ado about two months in the resentencing of former Qwest chief Joe NacchioAs 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.
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).
From Crime & Consequences here, "Honest Services Mostly Survives"
From The White Collar Crime Prof Blog here, "NACDL President Comments on Honest Services Trilogy"
From the WSJ Law Blog here, "What Does Future Hold For Honest Services Fraud?"
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:
- "Judge Weinstein Takes On Child Pornography Laws"
- New academic piece discussing child porn sentencing in an internet age
- "Federal judges argue for reduced sentences for child-porn convicts"
- Thorough and thoughtful district court defense of federal child porn guidelines
- Effective local reporting on realities and debates surrounding federal sentencing guidelines for child porn
- Effective new opinion discussing restitution in federal child porn possession cases
- Another thoughtful and notable district court opinion on restitution in child porn sentencing
- The latest (beneficial?) litigation front in child porn downloading battles
- Noting the latest data showing reduced (but disparate) federal sentences for child porn downloaders
- More examples of sentencing uncertainty surrounding federal child porn cases
Notable talk about possible sentencing reforms in PennsylvaniaThe 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.
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:
- SCOTUS decides honest services fraud statute covers only brides and kickbacks
- Anyone have ideas how (and how many) federal fraud prosecutions will be impacted by Skilling?
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).
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.
Another AEDPA habeas win for a defendant produces fascinating 5-4 SCOTUS splitThough 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.
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.
"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 23, 2010
BJS reporting state prison population down almost 3,000 in 2009, while fed population rose over 6,800As 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."
"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.