July 24, 2010
New research suggests race of victim impacts NC death penalty administrationThis new AP article, headlined "Researchers find race disparity in NC death cases," reports on a new study that suggests how race impacts the administration of capital punishment in the Tar Heel State. Here are the details:
A convicted killer is three times more likely to get a death sentence in North Carolina if the victim is white rather than black, according to researchers who have found similar results in other states.
The report comes weeks before a deadline for death row inmates to challenge their status under the Racial Justice Act, a state law that allows statistical evidence to be used to support a claim that race was a key factor in a death penalty decision. North Carolina is the second state after Kentucky to adopt such a law. It aims to prevent black defendants from being punished more harshly than whites.
The study was conducted by Michael Radelet, a sociology professor at the University of Colorado at Boulder, and Glenn Pierce, criminology researcher at Northeastern University in Boston. They studied reports to the FBI on 14,749 North Carolina homicides between 1980 and 2007 in which victims and suspects were identified as black or white. The researchers compared those cases against 352 death sentence cases.
A little more than 1 percent of those suspected of killing blacks were sentenced to death, compared to nearly 4 percent of those suspected of killing whites, said Radelet. He has found similar results in studies involving capital cases in Florida and Louisiana.
Race remained an important predictor of who was sentenced to death even after statistically separating the effect of other factors, such as whether a killer took the lives of multiple victims and whether a murder was accompanied by other felonies such as rape or robbery, Radelet said Friday....
The president of the North Carolina Conference of District Attorneys decried the study after a brief review. Prosecutors balance many factors when deciding whether to pursue a capital case, said Seth Edwards, the top prosecutor in Martin, Washington, Tyrrell, Hyde and Beaufort counties. "I strongly disagree with the implication that prosecutors base their decision to seek the ultimate punishment on the race of the victim or the defendant," Edwards said in an e-mail to The News & Observer of Raleigh. "Prosecutors do not look at skin color. We consider lots of things, but race is not one of them."
Radelet said he and Pierce have studied the effectiveness of the death penalty for 30 years, often finding it wanting. They decided to study race in North Carolina capital cases after the state's General Assembly approved the Racial Justice Act last year and there were few studies available on the subject, Radelet said.
He admits that not every factor used by prosecutors in decisions to seek death was included in his study. He said the racial disparity in death penalty convictions could be explained by other factors including prior criminal records, or whether the defendant and victim were family or strangers.
A broader study might also examine the races of the prosecutors involved in death penalty decisions, the races of the trial judges, and the races of jurors who serve in capital cases, Radelet said.
July 23, 2010
Tenth Circuit dodges Second Amendment issue in gun possession prosecution involving self-defense claim
The Tenth Circuit handed down a notable decision today in US v. Pope, No. 09-4150 (10th Cir. July 23, 2010) (available here), in which the panel dodges a potentially challenging Second Amendment issue on procedural grounds. Here is how the opinion starts:
This case began when a grand jury indicted Mark Pope for violating 18 U.S.C. § 922(g)(9). That statute makes it a federal felony for a person previously convicted of a misdemeanor crime of domestic violence to possess a gun. In response to the indictment, Mr. Pope filed a motion to dismiss. While he admitted to being previously convicted of a domestic violence crime, and to possessing a gun, Mr. Pope pressed an affirmative defense that, he said, precluded his conviction. Because he possessed the gun in question only on the property where he was living and only to protect himself, others, or his property, he argued that the application of § 922(g)(9) to him would violate the Second Amendment. While the statute may be constitutional as applied to other situations, it is, he submitted, unconstitutional as applied to the facts of his case.
The district court denied Mr. Pope’s motion to dismiss and today we affirm that decision. We do so without passing, one way or the other, on Mr. Pope’s Second Amendment defense because an antecedent procedural problem lurks here. All the material facts on which Mr. Pope’s motion to dismiss relies are outside the indictment, hotly disputed by the government, and intimately bound up in the question of Mr. Pope’s guilt or innocence. Under these circumstances, Fed. R. Crim. P. 12(b)(2) and our precedent preclude the resolution of Mr. Pope’s asapplied constitutional challenge before trial.
Notably, as the Pope opinion explains, after the district court denied the defendant's motion to dismiss, "Mr. Pope opted to plead guilty and was sentenced. In agreeing to plead guilty, however, he reserved his right to appeal the district court’s denial of his pre-plea motion to dismiss." In light of that plea decision, and now the Tenth Circuit's procedural ruling, it is unclear whether or how Pope's Second Amendment claim will ever be adjudicated on the merits.
A few related Second Amendment posts on related issues:
- Split en banc Seventh Circuit in Skoien upholds categorical exclusion of DV misdemeanant from Second Amendment
- Skoien and the many challenges of Second Amendment jurisprudence
- Fourth Circuit (unpublished!?) opinion follows Skoien on Heller challenge to § 922(g)(9) ... just after Seventh Circuit vacates it
- Eleventh Circuit rejects Second Amendment challenge to federal conviction for misdemeanant firearm possession
- Assailing the unjustified Second Amendment limits in Heller
"Rough justice: America locks up too many people, some for acts that should not even be criminal"
The title of this post is the headline of this new commentary in The Economist. Here is how it gets started:
In 2000 four Americans were charged with importing lobster tails in plastic bags rather than cardboard boxes, in violation of a Honduran regulation that Honduras no longer enforces. They had fallen foul of the Lacey Act, which bars Americans from breaking foreign rules when hunting or fishing. The original intent was to prevent Americans from, say, poaching elephants in Kenya. But it has been interpreted to mean that they must abide by every footling wildlife regulation on Earth. The lobstermen had no idea they were breaking the law. Yet three of them got eight years apiece. Two are still in jail.
America is different from the rest of the world in lots of ways, many of them good. One of the bad ones is its willingness to lock up its citizens (see our briefing). One American adult in 100 festers behind bars (with the rate rising to one in nine for young black men). Its imprisoned population, at 2.3m, exceeds that of 15 of its states. No other rich country is nearly as punitive as the Land of the Free. The rate of incarceration is a fifth of America’s level in Britain, a ninth in Germany and a twelfth in Japan.
The linked briefing is also a must-read, and it is headlined "Too many laws, too many prisoners: Never in the civilised world have so many been locked up for so little."
Justice or unjust disparity for Ponzi schemer getting sentence doubled due to harm to victims?This local report on a recent federal sentencing for a young fraudster, which is headlined "Pizzolato gets 30-year prison sentence in Ponzi scheme," provides a terrific setting in which to consider and debate concerns about post-Booker sentencing disparity. First, here are the basics:
A federal judge today gave a 30-year prison sentence to a Tickfaw man accused of swindling more than 160 people, many of them senior citizens, in a Ponzi scheme based out of his Northshore investment companies.
Wearing an orange jail jumpsuit and shackles, Matthew Pizzolato, 26, turned around and faced the victims sitting in the courtroom. Everyday he is "beside himself," Pizzolato said, shaking his head and crying. "I can't understand how my actions hurt so many people." Pizzolato said he hoped the judge's actions would give his victims "some closure."
But U.S. District Judge Lance Africk said Pizzolato's conciliatory expressions had only developed recently, after he learned that the judge intended to give him a longer sentence than what had been laid out in his plea bargain with federal prosecutors.
In the end, the 30-year sentence was double the maximum laid out in the federal sentencing guidelines, but the judge said that was necessary because of several factors, such as the psychological and emotional harm done to the victims and the advanced ages of many victims. "Mr. Pizzolato, you swindled the salt of the earth,'' said Africk. "You stole from hardworking Americans who toiled their whole lives."
During the hearing, multiple victims talked about how Pizzolato had taken their life savings ensuring them that the money would be invested in conservative securities. Much of the money, however, was actually diverted into Pizzolato's own pocket or lost in the high-risk futures market.
Although he had only an eighth-grade education and a high school equivalency diploma, Pizzolato told clients that he was one of the top 10 financial planners in the country, possessed special training in investing, was a certified estate planner and had graduated from law school.
To make investors believe the scheme was legitimate, Pizzolato issued false account statements and "Certificates of Investment." In some cases, he forged the signatures of his clients to make unauthorized withdrawals from their accounts.
Of the $19.5 million he collected, Pizzolato distributed about $2.8 million back to his clients in the form of "lulling payments, " or supposed returns on their investments, in order to quell any suspicions that he was a fraud. Pizzolato diverted another $9.9 million to use in high-risk futures and commodities trading. The rest, about $1.3 million, he lavished on himself and his family.
As the question in the title to my post is meant to spotlight, I would love to hear readers' views on whether this case is a great example of the ability post-Booker for district judges to do case-specific sentencing justice or a great example of the post-Booker problem of sentencing disparity.
I think it fair to assert that most district judges would not have imposed a sentence on Pizzolato that was double the guideline range and more than was set forth in the plea bargain he made with federal prosecutors. Nevertheless, it seems that legitimate sentencing factors played a central role in the decision to send Pizzolato away for 30 years (including perhaps also his young age, given that he still should may be able to be a free man at an age still much younger than the victims he swindled).
To put a fine point on this debate, here are a couple questions I would like to hear answered by any and everyone who has expressed concerns about post-Booker discretion and disparity:
1. Do you think justice has been served or injustice created by Pizzolato's sentencing?
2. Do you think the Fifth Circuit ought to reverse Pizzolato's sentence on appeal based on disparity concerns? (An appeal waiver might even preclude any appeal and I highly doubt the Fifth Circuit would reverse if this matter comes to them.)
3. Do you think the US Sentencing Commission and/or Congress needs to enact some new guidelines or statutes to diminish this kind of disparate outcome in other cases?
I raise all these question in this context because I genuinely suspect and fear that the vast majority of expressed concerns and complaints about sentencing disparity (especially when coming from current or former prosecutors) are principally concerns and complaints about sentencing leniency. Thus. when a sentence like Pizzolato's is disparately harsh, it provides a good setting to explore whether and how folks really care about disparity apart from leniency.
July 23, 2010 in Booker in district courts, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (16) | TrackBack
July 22, 2010
SCOTUS appoints former Alito clerk to defend Eighth Circuit's work in Pepper
As detailed in this new post by Lyle Denniston over at SCOTUSblog, the "Supreme Court on Thursday named a New York City lawyer and former Supreme Court clerk to argue the side of a criminal sentencing case that the federal government normally would defend." Here are the basics:
The government ... has sided with the prison inmate challenging his sentence in Pepper v. U.S. (09-6822) — a case granted review near the end of last Term and not yet scheduled for oral argument. At issue in the case is whether, under federal law, a judge imposing a new sentence after an earlier one was set aside is barred from reducing the sentence as a way to give the individual credit for having made efforts to rehabilitate himself after the initial sentence was imposed.
The Justice Department now takes the position that the judge may do so. The Department had urged the Court to send the case back to the Eighth Circuit Court to consider the Department’s present position, but the Supreme Court went ahead and granted review June 28 of an appeal by the Iowa prisoner, Jason Pepper.
In Thursday’s order, the Court chose Adam G. Ciongoli to enter the case as a friend-of-the-court and present a merits brief and an oral argument that a judge lacks that authority. Ciongoli, now engaged in corporate practice and teaching part-time at Columbia Law School, is a former law clerk to Justice Samuel A. Alito, Jr.
Because of the messy record, I thought Pepper might eventually become a DIG case. But now that SCOTUS has appointed counsel to defend the Eighth Circuit's approach, I suspect we will get some kind of ruling in Pepper.
UPDATE: A helpful reader alerted me to the interesting coincidence that, also today, the district judge in Iowa who sentence Jason Pepper to serve more prison time today released him pending the disposition of his SCOTUS appeal. The brief order to this effect can be downloaded below:
New poll reports that large majority of Americans consider "War on Drugs" a failure
As report in this press piece, "[n]early two-thirds of Americans believe their country has a serious drug abuse problem, but 65 percent think the federal government's 'War on Drugs' has been a failure, according to a new national Angus Reid poll." Here's more:
More details on this poll appear in this Angus Reid release, and I found this particular political date tid-bit especially interesting:
Low marks for the "War on Drugs" cross party lines, with 63 percent of Democrats and 64 percent of Republicans and 70 percent of Independents picking the option of failure. Just 8 percent believe the anti-drug war is a success.
The poll of 1,003 American adults, taken July 14 and 15, shows that the public is drawing a distinction between marijuana and other drugs. A total of 52 percent supported the legalization of marijuana. Just 8 percent would support legalization of heroin or powder cocaine or Methamphetamines.
More than half of respondents (52%) support the legalization of marijuana. While clear majorities of Democrats (57%) and Independents (59%) agree with this course of action, only about two-in-five Republicans (38%) concur.
These numbers confirm my instinct that supporting (or at least not opposing) marjuana legalization movements and initiatives might be an especially effectively way for Democrats to help energize some of its voters during this coming off-year election and also a way to sway some of the independents that, according to other polls, are moving away from Democrats in large numbers.
Big new US Sentencing Commission report on federal supervised releaseI was intrigued and pleased to come across on the US Sentencing Commission's website this long new report from the USSC titled simply "Federal Offenders Sentenced to Supervised Release." Here is an excerpts from the report's introduction and conclusion:
This report addresses the legal framework and most common legal issues that arise in regard to supervised release and analyzes data concerning the imposition, modification, and revocation of supervised release terms.
In 1984, as part of the Sentencing Reform Act (“SRA”) that created the federal sentencing guidelines system, Congress prospectively eliminated parole and established supervised release. Supervised release is a “unique” type of post-confinement monitoring that is overseen by federal district courts with the assistance of federal probation officers, rather than by the United States Parole Commission. A sentencing court is authorized (and, in some cases, required) to impose a term of supervised release in addition to a term of imprisonment. While on supervised release after reentry into the community following release from imprisonment, an offender is required to abide by certain conditions, some mandated by statute and others imposed at the court’s discretion. If an offender violates a condition, a court is authorized (and, in some cases, required) to “revoke a term of supervised release, and require the defendant to serve in prison all or part of the term of supervised release without credit for time previously served on post[-]release supervision.”...
With nearly one million federal offenders having been sentenced to supervised release since the passage of the Sentencing Reform Act (including more than 100,000 offenders currently on supervised release) and with revocations occurring in approximately one-third of cases in which supervised release terms were imposed, issues concerning the imposition and revocation of such terms arise frequently. This report has addressed a wide variety of legal and data issues concerning supervised release. The federal courts of appeals have taken divergent positions on many of the legal issues....
Courts’ close adherence to the guidelines’ provisions concerning the imposition of supervised release has been consistent for most of the major offense types (drug-trafficking, firearms, immigration, and fraud/larceny cases) and also has been consistent across the criminal history categories. Data concerning the termination and revocation of supervised release terms are informative concerning whether such uniformity across offense types and criminal history categories has been warranted. In particular, the percentage of successful terminations of supervision for certain offense types (e.g., drug cases) has been significantly higher than for other offense types (e.g., firearms cases). Furthermore, success rates in supervision are highly correlated with offenders’ criminal history categories at the time of the original sentencing. On average, the lower the criminal history category an offender has, the greater likelihood that the offender successfully will complete supervision without revocation for violation of the conditions of supervision.
Kudos to the USSC for producing this impressive report on federal supervised release law and practice, and kudos to any reader who uses the comments to spotlight any especially significant or surprising aspect of the report.
The messy realities of Ohio's adoption of AWA sex offender registration rulesA helpful reader altered me to this local article which provides a window into just some of the many messy issues involved in Ohio's on-going effort to get conform its sex offender registration rules to comply with the federal Adam Walsh Act. The piece is headlined "Sex offender reclassifications will take months; One case shows how new ruling affects law on registration," and here are some highlights:
George Anderson, a rapist designed a Tier III sex offender, was convicted by a Montgomery County jury for failing to verify his address. On Friday, July 16, the Ohio 2nd District Court of Appeals voided his conviction, citing the June 3 Ohio Supreme Court decision that eliminated reclassifications under the Adam Walsh Act....
These types of decisions will likely continue during the coming months, said Margie Slagle, staff attorney with the Ohio Justice and Policy Center. “Thousands and thousands of petitions were filed across the state,” Slagle said.
Twenty-eight counties were awaiting the Supreme court’s ruling before taking any action on challenges to Walsh. Nine, including Montgomery, issued county-wide stays, according to a brief filed by the Ohio Public Defender.
Anderson was originally classified a “sexually oriented offender,” the lowest designation under the state’s Megan’s Law. He was required to register his place of residence annually for 10 years. Under the Adam Walsh Act, which replaced Megan, he was reclassified as a Tier III offender — the highest level — and required to report every 90 days for the rest of his life....
The high court’s ruling kept the Walsh system for new offenders, but ordered the 26,000 offenders who were reclassified to be returned to the old system and its requirements. “It’s going to make it confusing,” said Mercer County Sheriff Jeff Grey, who heads the Buckeye State Sheriff’s Association’s committee on sexual offender notification.
Under the old system, 77 percent of offenders were in the lowest category and 18 percent were in the highest as “sexual predators.” Under Walsh, the highest category, Tier III, contained 54 percent.
That tripled the workload for sheriff’s offices, with more offenders visiting four times a year instead of annually, Grey said. “That’s less time that we have a deputy out physically looking” to see if offenders live at the addresses they give, Grey said.
Attorney General Richard Cordray, whose office notified all affected offenders in 2008 that their designation had changed, has asked the Supreme Court to reconsider its decision. He also has included a request for clarification concerning those offenders who did not have court hearings to determine classification, such as those convicted in other states. Ted Hart, a spokesman for Cordray’s office, said staff was manually going through all records to determine which defendants had court hearings.
"Eric Holder Must Investigate Sentencing Disparities"The title of this post is the headline of this notable new commentary authored by Bob Barr at the (now notorious?) website Big Government. Here are excerpts:
A few months ago, Attorney General Eric Holder took an important step in ensuring that all men are treated equally under our legal system. In a memorandum to federal prosecutors, he noted that those who commit similar crimes in different jurisdictions “should, to the extent possible, be treated similarly.” He also cautioned against unwarranted disparities in charging decisions, plea agreements and sentencing recommendations.
But while putting these words on paper to guide federal prosecutors is important, the Department of Justice ultimately is to be judged on whether it follows in deeds. Unfortunately, right now the Obama administration is missing a golden opportunity in Iowa to show it supports parity for all.
Sholom Rubashkin was the manager of a highly successful kosher meatpacking plant in Postville, Iowa. He recently was sentenced to 27 years in prison for banking offenses. It was a startlingly long sentence for a first-time, non-violent offender; especially for a man who never intended any loss to the bank from which he borrowed funds to run the meat business. By contrast, Mark Turkcan, the president of a St. Louis bank who knowingly defrauded his company out of nearly $35 million, was sentenced last year to just 366 days in jail.
The details of how prosecutors have handled Rubashkin’s case have raised many eyebrows; and dozens of former Justice Department officials have spoken out on Rubashkin’s behalf. But Holder and his team thus far have refused to investigate the case. How, then, can we take seriously their calls to end disparities of justice?...
As a former U.S. Attorney, I am keenly aware of the pressure federal prosecutors are under to garner big convictions. But sometimes, getting the big victory comes at the expense of true justice and more and more we are seeing federal prosecutors step over the lines of good practice. The “win at all costs” mentality certainly hurts individual defendants; but it also constitutes a stain on the American justice system. And from a practical standpoint, using extreme tactics wastes precious resources that can be used to fight crime in other ways.
Attorney General Holder is on the right track by pushing federal prosecutors to seek fair, effective and even-handed administration of justice. But he needs to do more than put good words on paper. The Department of Justice must investigate the Rubashkin case and the many ways in which the prosecution has targeted Sholom Rubashkin for unfair treatment. Anything less than a full review sadly will show the Obama administration is not serious when it calls for equal treatment for all.
July 22, 2010 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack
New poll shows support for death penalty still very strong even in blue CaliforniaThis local news report, headlined "Death penalty still gets overwhelming support: 70% of voters favor it, split when given choice," highlights that the nation's biggest state still has a big number of people supportive of the death penalty. Here are specifics:
California voters still strongly support the death penalty, but they are almost evenly split when there’s a choice of sentencing a first-degree murder to life without parole or death, according to a new Field Poll. The nonpartisan survey shows that seven in 10 voters favor capital punishment.
Given the option, 42 percent would prefer life in prison without parole for a murder, 41 percent would choose the death penalty, 13 percent say it depends on the situation and 4 percent had no opinion. “Voters may want to keep the death penalty, but some may want to apply it in only the very heinous crimes,” said Field Poll director Mark DiCamillo.
The poll may send a signal to some campaign strategists that candidates could be vulnerable on the issue, depending on how they frame tough-on-crime images, DiCamillo said. In the race for governor, Democrat Jerry Brown , a former governor and current state’s attorney general, is personally opposed to capital punishment but says he will follow the law. Republican Meg Whitman supports capital punishment.
Voters who support Brown endorse the death penalty 60 percent to 34 percent. Whitman’s followers favor it nearly 81 percent to 16 percent, according to the Field Poll.
The race to replace Brown as attorney general features two district attorneys at opposite ends of the state and political spectrum on this issue. Democrat Kamala Harris of San Francisco has come under fire for not pursuing the death penalty. She opposes capital punishment, but says she would enforce the law if elected. Republican District Attorney Steve Cooley of Los Angeles has argued for death sentences....
In the U.S. Senate race, both incumbent Democrat Barbara Boxer and Republican challenger Carly Fiorina say they back the death penalty....
Surveys conducted before 2002 asked adults, not just voters. In 1956, the spread was 49 percent to 29 percent in favor. In 1986, capital punishment was endorsed by 83 percent — tied for the highest recorded level. And in 2006, the margin was 67 percent to 29 percent. After 1977, the lowest amount of support came in 2000, at 63 percent.
I would love to see a poll like this include some questions that probe what voters actually know about the operation of the death penalty in California and elsewhere. Specifically, I wonder how many of the persons polled know that California has the largest death row in the nation and yet has had lethal injection litigation keeping anyone from being executed for nearly five years now.
Eighth Circuit approves most, but not all, broad supervised release restrictions for sex offenderYesterday the Eighth Circuit handed down a notable opinion in US v. Simons, No. 09-2142 (8th Cir. July 21, 2010) (available here), concerning a set broad supervised release restrictions on a sex offender convicted for failing to register. Here is the unofficial summary of the ruling from the Eighth Circuit's website:
Though not breaking lots of new jurisprudential ground in Simons, this AP found the ruling notable. It has this report on the case, headlined "Appeals Court says nude pics OK for sex offender."
No error in imposing the following special conditions of supervised release following defendant's conviction for failing to register as a sex offender: (1) refrain for excessive use of alcohol; (2) no contact with children under the age of 18 unless the contact is approved in advance by the probation officer; and (3) remain 500 or more feet away from schools, playgrounds and other places where children congregate. The district court erred, however, in barring defendant from possessing any materials that depict nudity, as such a condition results in a deprivation of liberty greater than is reasonably necessary; this condition is vacated and the matter is remanded for additional findings and resentencing.
July 21, 2010
"House can reduce powder cocaine vs. crack sentencing disparity"The title of this post is the headline of this editorial from today's Washington Post urging the House of Representatives to take steps to pass the compromise reform of federal mandatory minimum sentencing laws that got Senate approval way back in March. Here are excerpts:
The Fair Sentencing Act of 2010 brings fairness and sanity to this 20-year saga [concerning crack/powder sentencing disparity]. The bill, which the House is expected to take up soon, eliminates a mandatory minimum sentence for simple possession -- an important achievement in and of itself. An offender would have to be convicted of peddling 28 grams or more of crack to be hit with a five-year mandatory sentence. A 10-year prison term would be handed down for 280 grams or more. The disparity between crack and powder would be reduced -- from the current 100:1 to roughly 18:1 -- but not eliminated. This is an important acknowledgment that crack, because of its addictive properties and its ability to quickly destroy the user's health, is different from powder cocaine and deserves reasonably tougher penalties. The Congressional Budget Office estimates that shorter periods of incarceration would save the federal prison system some $42 million over five years. This is a small amount of money, but it is a welcome consequence of restoring a modicum of fairness to a broken part of the criminal justice system.
The bill has garnered support from Republican and conservative leaders such as Asa Hutchinson, former head of the Drug Enforcement Administration, and David Keene, president of the American Conservative Union, as well as from members of the Congressional Black Caucus and Families Against Mandatory Minimums. The Senate unanimously passed the measure in the spring. It is time for the House to embrace it as well.
That this bill managed to get through the Senate unanimously in March and yet still sits unaddressed by the House serves as another useful reminder of how hard it is for politicians on both sides of the aisle to place good policy ahead of good politics in the development of criminal justice reforms. I remain hopeful that this bill will become law before too long, but the delay to date has only deepened my cynicism about the problematic unwillingness of many current members of Congress (as well as many current members of the Obama Administration) to make sensible and needed criminal justice reform a legislative priority.
Some related posts from when the Senate passed the Fair Sentencing Act of 2010:
- Unanimous(!!) vote by Senate Judiciary Committee to reduce (but not eliminate) crack/powder disparity
- Varied reactions to the crack/powder reform work of the Senate Judiciary Committee
- Full Senate passes bill to reduce (but not eliminate) crack/powder disparity
- Will and should House adopt the crack/powder reform compromise passed by Senate?
- Different editorial perspectives on crack reform compromise
- Questions about the "when" and "now what" for crack/powder sentencing reform
- What's the status of crack/powder sentencing reform in the House?
Wealthy sex offender reduces(?) prison sentence through plea deal giving $1.6 million (payoff?) to victimI just came across this fascinating state sentencing story from The Oregonean, which is headlined "Portland multimillionaire pleads guilty to molesting neighbor boy, agrees to pay victim $1.6 million." Here are the details of a story that raises a host of substantive and procedural sentencing issues:
A Portland multimillionaire who repeatedly molested a neighborhood boy has agreed to pay his victim $1.6 million and spend about nine years in prison.
The deal, approved Tuesday in Multnomah County Circuit Court, is unusual because most defendants haven't accumulated the wealth of Scott Raymond Strickland -- a former doctor and Alaska Airlines flight attendant, said Josh Lamborn, the civil attorney for the victim. Until last year, Lamborn worked as a prosecutor, specializing in child sexual abuse cases, and he now represents victims of sexual abuse, among others. "In my 13 years in the DA's office, I can count on one hand the people who have the kind of money Mr. Strickland has," Lamborn said.
Lamborn said the money will pay for a possible lifetime of counseling for his client, as well as compensate him for the damage from years of abuse by Strickland. Recently, the victim told his girlfriend, then his mom, that Strickland had sexually abused him starting when he was 9 and ending at 15.
Lamborn largely negotiated the plea deal with Strickland and his attorneys, then sent the district attorney's office a letter on behalf of the victim. He asked prosecutor Don Rees to sign off.
Rees said that in approving the deal, he took into account the victim's wishes and the victim's strong desire not to recount the abuse by testifying in a trial. Strickland, who is now 56, didn't have a criminal history up until now. What's more, Rees said defense attorney Scott Raivio presented "mitigating evidence" that indicated Strickland is unlikely to molest a child again.
By agreeing to pay the money and to spend what likely will amount to 8 1/2 years in prison, with time off for good behavior, Strickland may have avoided more prison. He was originally charged with multiple counts of first-degree sexual abuse, first-degree sodomy and other crimes -- and he likely faced a range between 8 1/3 years and 14 1/2 years in prison under Oregon sentencing guidelines if convicted.
But Strickland pleaded guilty Tuesday to first-degree sexual abuse and the lesser crime of attempted first-degree sodomy. He will be given an opportunity to speak at his sentencing hearing late next month. So will his victim and the victim's mother.
Judge Julie Frantz said Strickland must turn himself in to jail in about two weeks. The extra time between now and then will allow Strickland to liquidate his assets so he can pay the victim.
Strickland was arrested in January but released from jail a few weeks later because he posted the necessary 10 percent of his $4 million bail. According to authorities, he was taken back into custody a short while later after trying to commit suicide by stabbing himself in the neck with an X-acto knife. He was released a short while later, once a judge was convinced he was mentally stable.
In a hearing early this year, Strickland's attorney said his client worked as a doctor for 18 years in Minnesota. Records from the Minnesota Board of Medical Practice show he was forced to resign in 1999 for inappropriate behavior and for falsifying his specialty credentials to say he was certified by the American Board of Internal Medicine. He'd failed his examinations.
He then moved to Oregon to work as a flight attendant and instructor for Alaska Airlines, where he stayed for 10 years.
Strickland told authorities he was worth $2.5 million. After paying taxes and penalties, Lamborn said, most of Strickland's life's savings will go to his victim.
I have quoted the news report at length because this case reads like an exam question for not only a criminal sentencing course, but also a legal ethics exam. Though I am not an expert on criminal justice ethics, is it really kosher for a former prosecutor, now representing a crime victim soon after he quit the DA's office, to negotiate a plea deal with his client's assailant and "then sen[d] the district attorney's office a letter on behalf of the victim [asking the] prosecutor ... to sign off" on the plea deal that he negotiated?
As a technical matter, my legal ethics concerns perhaps turn on whether the arranged payment to the victim — dare I say payoff? — is styled as settlement of a possible civil suit or as restitution to be imposed as part of the formal criminal sentence. Either way, the professional history of the "civil" lawyer putting together this deal makes this all seem a bit hinky. (The ethical issues get even more dynamic if we reasonably assume that the former DA is getting a significant cut of the $1.6 million payment he has now secured for his client, and that the victim's parents played a significant role in the negotiations).
Legal ethics issues aside, I wonder what readers think about this story as a matter of pure sentencing. If the juvenile victim indeed wants this criminal case to be resolved by a plea and all involved want monies going from the defendant to the victim, is there anything wrong with a significant prison time reduction being the glue that helps a plea deal stick? (I am reminded of the Donte Stallworth DUI homicide case in which the family of the victim seemed more eager for an economic settlement than to see Stallworth serve a long prison term.)
Finally, should the sentencing analysis here as to a just prison term give any attention to the defendant's failed suicide attempt and/or his peculiar professional past? As one always interested in (and unsure about) the proper role for offender characteristics at sentencing, this case is a doozy just on that front.
July 21, 2010 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack
Just another (average?) week in incarceration nation...
with Lindsay Lohan entering jail apparently for only two weeks, and Lord Conrad Black getting to go free on bail from federal prison after having already served well over two years. Anyone want to make predictions on likelihood of recidivism for these two notable defendants?
"Oakland council OKs plan to set up pot factories"The title of this post is the headline of this notable report from the Los Angeles Times. Here are the details:
Oakland's City Council on Tuesday approved an ordinance that could make it the first city in the state to permit industrial marijuana production, a path-breaking decision that could spur the commercialization of a crop largely grown in hidden gardens.
The plan would authorize four potentially enormous pot factories, but makes no provision for the hundreds of growers who now supply Oakland's four dispensaries, which sold $28 million in marijuana last year. The council, however, promised it would develop a plan for these growers before permits are awarded next year for the four large-scale marijuana operations.
"This is a monumental step forward," said Dale Gieringer, an Oakland resident and the longtime head of California NORML, which backs the legalization of marijuana. "It really means moving into the era of industrial-scale operations and Oakland means to do it big."
The 5-2 vote came after two hours of testy debate between pot growers who argued the proposal could destroy their livelihoods and businessmen who said it could turn Oakland into the Silicon Valley of pot, create jobs and generate new tax revenues. The audience booed, hissed and talked back, causing City Council President Jane Brunner to repeatedly admonish the crowd....
Jeff Wilcox, a businessman who has presented the most detailed plan for a marijuana factory, warned the council that if it did not act quickly, it would lose the momentum to other cities, such as Berkeley, which plans to ask voters to approve six large-scale commercial operations. "You've got an issue here," he said. "You're late."...
Bringing what has been a secretive and lucrative cash business into the open would also allow Oakland to tax it, potentially adding millions of dollars to its ailing budget. The city, which has led the state in its innovative approach to marijuana, was the first to adopt a pot tax, which is 1.8%, but is considering asking voters to approve a substantial increase.
Oakland keeps a list of people who have expressed interest in the permits. On Tuesday afternoon, Arturo Sanchez, who oversees the city's marijuana regulations, said it had 192 names. But much of the attention has focused on just a few successful businessmen who have been vocal about their plans and their intent to win permits. They have money, buildings, proposals and ready access to the council members, but only recently became interested in medical marijuana.
Wilcox, a retired construction firm owner, wants to convert a complex of aging industrial buildings he owns along Interstate 880 into what could be the world's largest pot factory, raising about 58 pounds of marijuana a day, more than enough to handle Oakland's consumption.
Two other entrepreneurs, Dhar Mann and Derek Peterson, partners in a hydroponics store called iGrow, have a team already working on designs for a multi-level operation in a 57,000-square-foot warehouse that they have an option to lease. Peterson said he had no doubt their proposal would win a permit.
I am getting a contact high from just reading about the notable impact of combining the laboratories of democracy and the engines of the free market in the medical marijuana business. Especially if — should I say when? — more politicians and voters see a tangible economic benefit from allowing pot production and sales, I suspect it will be only a matter of time before market forces help to bring at least a partial repeal to modern pot prohibitions.
July 21, 2010 in Drug Offense Sentencing, Elections and sentencing issues in political debates | Permalink | Comments (3) | TrackBack
Eighth Circuit declares Begay retroactive and provides relief in 2255 motionWhile I was on the road yesterday, the Eighth Circuit handed down a significant opinion in Sun Bear v. US, No. 09-2992 (8th Cir. July 20, 2010) (available here). Here is the unofficial summary of the ruling from the Eighth Circuit's website:
Begay applies retroactively to cases on collateral review, and defendant was not a career offender in light of Begay; the district court erred, therefore in applying the career offender guideline to defendant; the court could not say the error was harmless since the court did not clearly indicate that the career offender guideline did not impact its sentencing determination; the matter is remanded for further proceedings.
Though not breaking lots of new jurisprudential ground in Sun Bear, the opinion here clarifies and connects a lot of important points for folks working on various criminal history issues, especially on collateral review.
Third Circuit requires prosecutors to do more with less in Fumo sentencing appealAs noted in this post last week, defense attorneys in an appellate fight over the proper federal sentence for a high-profile state politician objected to prosecutors' request to file a super-sized brief. Now, as detailed in this piece in The Legal Intelligencer, which is headlined "3rd Circuit Judge Orders Feds to Trim Big Brief in Fumo Case," the defense achieved a partial victory in this first Fumo fight:
Federal prosecutors are demanding a longer prison sentence for former Pennsylvania state Sen. Vincent Fumo, but first they're going to have to make their own appellate brief considerably shorter.
In a quick victory for the Fumo defense team, the 3rd U.S. Circuit Court of Appeals has ordered prosecutors to slash their brief by about 20 percent, reducing it from more than 53,000 words to no more than 42,500.
The order came from U.S. Circuit Judge Thomas Vanaskie, one of the 3rd Circuit's newest judges, and says the government's new, leaner brief is due by Aug. 4....
In the appeal, prosecutors are arguing that U.S. District Judge Ronald L. Buckwalter was too lenient when he ignored guidelines that called for a prison term of more than 21 years for Fumo and instead imposed a 55-month prison term.
Fumo was convicted of 137 counts of fraud and obstruction of justice for misusing millions in funds from a charity he created and stealing the services of Senate staffers "to support a lavish lifestyle and illegally amass political power," the prosecutors argue.
The appeal also says Buckwalter was too lenient in sentencing Arnao -- a longtime Fumo aide who was installed as the executive director of the charity -- to just one year in prison.
Soon after the prosecutors filed their appellate brief, the lawyers for Fumo and Arnao objected to its length, arguing that it was simply too long and set the stage for the court and the lawyers to be swamped in paper. Court rules ordinarily impose a 14,000 word limit for the opening brief and the government's first version, filed on July 9, was about 3.8 times longer. The new and shorter version is limited to about three times the standard limit.
To put things in perspective, the entire stack of briefs in the Fumo appeal would add up to about the length of Kurt Vonnegut's novel "Slaughterhouse-Five" if the lawyers stayed within the standard limits. If the government had been allowed to stick with the first version of its brief, which weighed in at 281 pages -- and if all subsequent briefs had exceeded the standard limits by the same percentage -- the stack would look more like Fyodor Dostoyevsky's "Crime and Punishment."
But now that Vanaskie has ordered a 20 percent reduction -- and assuming that all of the briefs weigh in at about three times the ordinary limit -- the appellate judges will be facing a reading assignment more along the lines of John Steinbeck's "The Grapes of Wrath."
NY Times editorial praising new laws on hiring former offendersThe New York Times this morning has this notable new editorial headlined "Hiring and Fairness." Here are snippets:
Boston, Chicago and San Francisco set a welcome example earlier in the decade when they abandoned counterproductive policies that often barred former offenders from municipal jobs, no matter how minor their crime nor how distant in the past. Connecticut, New Mexico and Minnesota have recently passed laws protecting the employment rights of former offenders. Other states should quickly follow.
City governments recognized years ago that discrimination against former offenders had rendered a huge portion of the urban population unemployable. The records also are notoriously unreliable, often flagging people who were falsely arrested or tried but found innocent of a crime....
Confining people with criminal convictions to the very margins of society is unfair and self-defeating. These sensible new laws recognize that.
July 20, 2010
Photoshop effort to manufacture mitigating evidence proves aggravating to federal judgeI just came across this amusing recent article from the New York Daily News, which reports on a novel (and highly ineffectual) effort by a fraud defendant to build a case for sentencing leniency:
A career fraudster was sent to the slammer for nearly 24 years after giving a White Plains federal judge phony photos of himself doing charity work at hospitals and schools in a bumbling bid for leniency.
Daryl Simon's bald-faced move included sticking a picture of himself into a shot with a physical-therapy patient, then flipping the image and placing it next to a teen student.
"Evidence that his image was inserted and flipped can be seen by examining the single detail on his shirt above his fingers -- that detail appears on the left side of the shirt in the top photograph, and on the right side of the shirt in the bottom photograph," prosecutors wrote.
Another particularly heartless snapshot shows the 38-year-old scammer purportedly comforting a sickly patient struggling during a rehabilitation exercise.
Simon even had the gall to submit fake letters of support from various charitable organizations and individuals, according to the US Attorney's Office. Judge Stephen Robinson saw through the ruse, blasting Simon Thursday for trying to "commit a fraud on the court."
Robinson then slapped him with a 285-month prison term -- 50 months more than the maximum under sentencing guidelines -- for credit-card fraud and bail jumping.
His brazen crimes included buying a sports car with a fake cashier's check for $29,500, along with numerous credit-card scams and possession of a stolen Mercedes-Benz.
Perhaps Simon was merely trying to show off his photoshop talents to the judge in a misguided effort to suggest he could be qualified to get a job with BP in its doctoring-photos department.
Effective review of New Jersey's recent significant prison population declinesThanks to The Crime Report, I saw this effective local article from New Jersey discussing the Garden State's significant reduction in its prison population over the last decade. The piece is headlined "N.J.'s inmate population declines, officials credit less crime, prisoner re-entry programs," and here are excerpts:
In Kentucky, authorities started a controversial program to release inmates early to alleviate prison overcrowding. In California, federal judges ordered prisons to shed 46,000 inmates in a case heading to the U.S. Supreme Court.
But in New Jersey, the prison population fell 14.8 percent from 2000 to 2009 without any need for such drastic actions, according to new federal statistics. New Jersey is one of only six states to reduce the number of prisoners over the decade.
With 25,263 inmates in the system as of this month, state prisons still hold more people than they were designed for. And 600 additional inmates will be double-bunked this year to save money. But officials say the overall population shrank because crime was cut, drug courts diverted many people from jail, and programs helped inmates prepare for life on the outside.
"It’s a pretty impressive reduction," said Marc Mauer, executive director of the Sentencing Project, a research and advocacy organization. "We’re not just talking about a tinkering. It comes about through conscious changes in criminal justice policy."
New York is the only state whose prison population declined faster than New Jersey’s, by 16.4 percent. Maryland, Michigan, Delaware and Illinois also cut their inmate numbers.
But while the total number of state prison inmates in the country dropped last year for the first time since 1972, most states struggle with increasingly large and expensive prison populations. West Virginia packed its prisons with 65.1 percent more inmates from 2000 to 2009. Minnesota, Arizona, Florida and Kentucky had increases from 45 to 60 percent.
"It’s hard to find a state not having a problem," Mauer said. State officials, researchers and experts said New Jersey’s progress reflects a multi-faceted approach to the issue — before sentencing, in prison and after incarceration....
One big reason for the reduction in inmates is that fewer people are going to prison in New Jersey. In 2000, 12,845 were sent to state prison. In 2009, there were 11,948.
The state’s overall crime rate fell 17.1 percent from 2000 to 2008, the last year Uniform Crime Report statistics are available. Violent crime dropped 13.2 percent in that period....
Offenders who commit nonviolent drug-related crimes can enter drug court programs to avoid prison time and receive treatment... The state recently loosened mandatory minimum sentences for drug crimes, a primary reason for prison population increases. Some people caught dealing drugs within 1,000 feet of a school will no longer be automatically sent to prison for one to three years....
Smaller inmate populations can’t come fast enough for states facing severe budget deficits. In New Jersey, where the deficit was $11 billion, each inmate costs about $49,000 a year.... New Jersey closed Riverfront State Prison in Camden last year, saving at least $43 million annually. The state also stopped using a Kearny facility to house civilly committed sex offenders. Overall, the corrections budget dropped $67 million, to $1.08 billion, this year.
"Are Lindsay Lohan, other celebs glorifying jail time?"Today's question of the day comes via this lengthy article with the same headline as my post title in the Detroit Free Press. Here is how the piece it begins:
Lindsay Lohan is scheduled to go to jail today. While it may not sound like a big deal -- yet another train-wreck celeb in trouble -- it may actually have a cumulative effect on fans, especially young people. Social experts suggest that being pelted with image after image of celebrity after celebrity in trouble does have societal implications.
"Things like reality TV and other things have almost glorified going to jail," said Arthur Robin, head of psychology at Children's Hospital of Michigan. "Yes, it's still something young people view very negatively, but probably not as negatively as 50 years ago."
The accelerated news media obsession with locked-up celebrities, politicians and sports stars may be desensitizing young people to jail, experts have said. Rather than a stiff penalty, jail has become a simple inconvenience.
Published reports suggest Lohan's first post-jail interview will be worth more than $500,000. Lil Wayne plans to drop his next album from Rikers Island. And in urban areas like Detroit, the jailings of those in the public eye could be leading youths down the wrong path.
Elena Kagan recommended for SCOTUS confirmation by Senate Judiciary CommitteeI am off-line most of today to talk about the Eighth Amendment at the annual conference for the National Association of Appellate Court Attorneys. But a lunch break allows for a post on this SCOTUS news from the AP:
Pushing toward an election-year Supreme Court confirmation vote, a polarized Senate Judiciary Committee Tuesday approved Elena Kagan to be the fourth female justice. Just one Republican joined Democrats to approve Kagan's nomination and send it to the full Senate, where she's expected to win confirmation within weeks.
Sen. Lindsey Graham, R-S.C., broke with his party to cast the sole GOP "yes" vote on President Obama's nominee to succeed retiring Justice John Paul Stevens. The vote was 13-6. "What's in Elena Kagan's heart is that of a good person who adopts a philosophy I disagree with," Graham said. "She will serve this nation honorably, and it would not have been someone I would have chosen, but the person who did choose, President Obama, I think chose wisely."
A few more Republicans are expected likely to back Kagan in the full Senate, where Democrats have more than enough votes to confirm her. But most GOP senators are against her, arguing that she would put her political views ahead of the law. They point to what they call her liberal agenda and on such issues as abortion and gun rights, and have chastised her for the decision as dean of Harvard Law School to bar military recruiters from the campus career services office because of the policy against openly gay soldiers.
July 19, 2010
Seventh Circuit grants bail to Lord Conrad Black after his SCOTUS winAs detailed in this Bloomberg report, "Conrad Black, the former Hollinger International Inc. chairman jailed since March 2008 following a conviction for fraud, was granted bail" by the Seventh Circuit this afternoon. The brief order is available at this link, and here is more background:
Black is “granted bail pending the disposition of his appeal in this court,” the appeals court wrote in today’s order. The case is sent back “for the limited purpose of permitting the district court to determine the conditions of release.”...
Black and the other executives with whom he was tried, were accused of siphoning the money from Hollinger International as they engineered the sale of $3 billion of its assets between 1998 and 2001. The Chicago-based company is now known as the Sun-Times Media Group Inc.
The fraud case was prosecuted by the office of Chicago U.S. Attorney Patrick Fitzgerald. His spokesman, Randall Samborn, today declined to comment on the appeals court ruling.
“We’re working very hard to get in front of the district court as soon as we can so we can get him out,” said Miguel Estrada, Black’s appellate lawyer. “It shows the government was wrong to say the Supreme Court’s 9-0 ruling meant nothing.”
Black has been serving a 6 1/2-year sentence at a low- security federal prison in Coleman, Florida.
Effective report on the ratcheing back of Georgia's sex offender residency restrictionsThe AP has this effective new report on the legislative softening of Georgia's sex offender residency restriction. (Hat tip: C&C) The piece is headlined "Ga. softens once lauded strict sex offender law," and here are excerpts:
Georgia was lauded four years ago by conservatives for passing one of the nation's toughest sex offender laws. But the state has had to significantly — and without fanfare — scale back its once-intense restrictions.
Georgia's old law was challenged by civil liberties groups even before it took effect. After losing court battle after court battle, state legislators were forced to make a change or a federal judge was going to throw out the entire law. Now that the restrictions have been eased, about 13,000 registered sex offenders — more than 70 percent of all Georgia sex offenders — can live and work wherever they want....
Georgia's strict law ran into trouble because it cast too wide a net, targeting sex offenders that committed their crimes years before the tough law was passed in 2006.... Gov. Sonny Perdue signed the changes into law in May, allowing the 13,000 or so registered sex offenders who committed their offense before June 4, 2003, to live wherever they choose. The date was picked because that's when the state's first sex offender overhaul took effect. Those restrictions were then strengthened three years later....
"The bottom line was that the hammer was about to fall on us, and I was deeply concerned that the entire statute was in jeopardy," said state Sen. Seth Harp, who helped push the latest revision. The changes in the law also allow some offenders to petition to get off the registry, clear the way for disabled and elderly offenders to be exempt from residency requirements and no longer require sex offenders to hand over Internet passwords.
Iowa has also scaled back some of its restrictions under pressure from the law enforcement community. The 2006 law there banned sex offenders released from prison from living within 2,000 feet of schools and other places where children gathered, but lawmakers revamped it after lobbying from the Iowa County Attorneys' Association.
The new rules leave the 2,000-foot ban in place for the highest-level offenders, such as sexual crimes involving a child. It also set up 300-foot "no loiter" zones that ban all offenders from lingering around the facilities. "It's better than what we had, but it still fosters a false sense of security," said Corwin Ritchie, the association's executive director. "It does target the predator-type who might be sitting within sight of a school, but we have so many sex offenses going on within people's homes, we forget those type of victims."
Many states are moving in the opposite direction. At least five in 2009 tightened residency restrictions for sex offenders, according to the National Conference of State Legislatures. California and several other states are considering more changes this year.
"It's something that states are still struggling with," said Jill Levenson, a Lynn University professor who specializes in sex offender policies. "One side argues the laws aren't punitive, but the other side of the argument is that once people enter into a plea and agree to something, you can't come back years later and change it."
"Five Things You Need to Know About Lindsay Lohan's Pending Jail Stint"The title of this post is the headline of this hard-hitting new piece at E! Online. Here is the piece's intro and the heading of those important "five things you need to know":
Lindsay Lohan is going to do the time — even though she remains in denial. "She's really nervous," a source close to the actress tells E! News. "She is still hoping she is not going to jail." Meanwhile, back in reality...
Lindsay is due to surrender herself tomorrow to begin serving her 90-day sentence, which will likely be shortened drastically due to overcrowding (25 percent of the original sentence is about as much as gets served these days).
After appearing in court, she will likely be shuttled to the Century Regional Detention Facility in Lynwood, Calif. And here's what you need to know about Lindsay's new digs:
1. It Has Celebrity Cachet....
2. It'll Ruin Her Diet of Kombucha and Cigarettes....
3. Michelle Rodriguez Is Not Impressed....
4. It's Girl-on-Girl....
5. It's Going to Be a Rough Ride....
Relatedly, I would like to know if readers would like me to keep blogging about the train-wreck starlet who is about to become (not-quite-) just-another number among the nearly 2.5 million persons incarcerated in the United States.
I generally enjoy blogging about celebrity cases because they provide a visible setting to discuss timely sentencing issues. Also, even silly celebrity posts tend to generate many interesting comments and can be fun as a change of pace. But I am already feeling as though I have done a bit too much LiLo blogging lately, and will only keep on this particular celebrity beat if readers think it worthwhile.
Related recent Lohan sentencing posts:
- "Lindsay Lohan New Spokeswoman for SCRAM Alcohol Testing Accessory"
- Lindsay Lohan doing her best to become technocorrections poster child
- Lindsay Lohan provides yet another opportunity to debate the (un)real aspects of celebrity sentencing justice
- Kudos to Professor Erik Luna for being cited by Lindsay Lohan in her Twitter rant about her jail sentence
California Democratic Party punts on potent politics of pot policyThis Los Angeles Times piece, headlined "California Democratic Party decides not to endorse marijuana legalization initiative," reports on the latest interesting political move in the state with the most robust on-going debate on pot policy. Here are the basics:
The state Democratic Party decided Sunday not to endorse the marijuana legalization initiative on the November ballot after a swift, passionate debate that left little doubt most Democrats in the hotel meeting room intend to vote yes at the polls.
The party decided to adopt a neutral position on Proposition 19, leaving the many local Democratic committees and organizations free to endorse the measure.
Advocates for an endorsement cited many reasons to back the initiative, but opponents pressed one overriding concern: a yes vote could damage statewide candidates in competitive races.
"We're concerned that our candidates, Jerry Brown, Barbara Boxer and others, who have actually come out against this are going to be compromised," said Steve Preminger, the chairman of the Santa Clara County Democratic Central Committee, "so we're going to get lost in a discussion about the merits of whether we should legalize or not, when, really, we the Democratic Party want to put all of our efforts into electing our ticket."
Robert Cruickshank, public policy director for the Courage Campaign, which backs progressive causes, called for the vote in an attempt to overturn a party committee's recommendation to adopt a neutral position. He started by reminding the assembled Democrats that the party's chairman, former San Francisco state Sen. John Burton, has said pot was the issue that would motivate young voters to go to the polls in this off-year election.
"If we endorse Proposition 19 and take a courageous position to support reform, just as we took courageous positions on same-sex marriage and other contentious issues, we will win the moral argument, we will win Proposition 19 and we will win races in November," Cruickshank said.
Proposition 19 would allow Californians 21 and older to grow, possess and transport marijuana, and allow cities and counties to opt to regulate and tax marijuana sales. Burton said he believes the issue will engage young voters, a key constituency for Democrats. He abstained on the vote but said he was not convinced that an endorsement would hurt Brown's campaign for governor, Boxer's bid for reelection to the U.S. Senate or the other Democrats running for top state offices. "The statewide candidates, I guess, are all antsy," he said....
The party's executive board, which includes elected officials and party representatives from across the state, voted 101 to 85 against an endorsement. But the Democrats, despite taking a cautious stance, appeared solidly behind the initiative, cheering and whooping much more raucously for the pro-endorsement speakers.
Given that Democrats are often accused by their opponents as being a party of big government that favors equality over liberty, I suppose few should be too surprised that this party in California will not get behind a proposition designed to put power in local government and individual hands. In turn, I remain hopeful that some of the folks who vocally advocate for smaller government and greater individual liberty, especially those folks affiliated with the Tea Party movement, will get behind Proposition 19.
Some related posts on pot policy and politics:
- Should and will California's voters legalize marijuana in that state this November?
- RAND study (foolishly?) tries to forecast impact of pot legalization in California
- "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?
- This is Fox News on drugs ... lots of questions
- Fascinating racial justice debate on California pot legalization proposition
- New report details racial disparities in pot possession charges in California
"In many cases the judges who diverge from the advisory Guidelines ranges will do so for the wrong reasons"The title of this post is a sentence from this intriguing new commentary now on SSRN from Professor Jonathan Masur, which is titled simply "Booker Reconsidered." There is a lot worth saying about this must-read piece, and to start I welcome reader reactions to both the key sentence quoted in the post title and this key paragraph of the author's analysis that immediately precedes this key sentence (with footnotes removed):
The result [of Booker making the guidelines advisory] is a system that is likely to underperform the prior regime in several important respects. There will certainly be cases in which judges will be better able to tailor sentences to fit offenders and their crimes under the advisory Guidelines. This ability to consider penalties on a case-by-case basis is, of course, the principal advantage of charging judges with the task of sentencing. Yet the cost of endowing the federal courts with this modicum of flexibility in sentencing is that racial and ideological disparities are likely to reappear, possibly in even more pernicious form. And that cost may not be balanced by a corresponding benefit from reinvigorating the role of the courts.
I greatly appreciate the effort to bring some cost-benefit analysis into the Booker debate, as well as Professor Masur's focus on the "division of institutional responsibilities" in his analysis. But I find curious and troublesome that the statutory provisions of 3553(a), which Booker preserved as binding sentencing law, get scant attention in this piece. Indeed, this piece strikes me as another example of both Bookerand federal sentencing judges being criticized because Congress appears unwilling to do any of the hard sentencing work that the Blakely and Booker constitutional rulings would now seem to require for the construction of an ideal sentencing system.
And here is what I find especially curious about the sentence I have quoted in my post title: if/when judges are doing their jobs properly after Booker, in all cases the judges who diverge from the advisory Guidelines ranges should and must do so based only on the mandatory considerations set out by Congress in the text of 3553(a). If in fact the "wrong reasons" are being used by district judges in many case in light of the text of 3553(a), circuit judges should be reversing more sentences. Alternatively, if district judges are generally complying with the text of 3553(a) when deciding to vary from the guidelines, there is something peculiar about the assertion that these variances are for the wrong reasons in many cases.
July 19, 2010 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Recommended reading, Who Sentences? | Permalink | Comments (3) | TrackBack
Sixth Circuit provides some intriguing advice during plain error sentence reversal
A sixth Circuit panel does some interesting work this morning in US v. Wilson, No. 08-1963 (6th Cir. July 19, 2010) (available here), which gets started this way:
Lashawn Wilson (“Wilson”) pleaded guilty to a single count of mail fraud, in violation of 18 U.S.C. § 1341, and was sentenced to 48 months of imprisonment. She now brings this sentencing appeal, arguing that the district court committed plain error by selecting her sentence based on the clearly erroneous premise that she had stolen one thousand money orders and five hundred cashier's checks. We agree, and we therefore vacate her sentence and remand for resentencing.
Though any plain error sentence reversal is worth noting, footnote one of the Wilson majority opinion (per Judge Boggs) and the concurrence (per Judge Martin with Judge Cole joining) are what really caught my attention. Here is the footnote (emphasis in original):
Wilson does not object to the district court’s use of a written sentencing opinion to explain the reasons for her sentence. We note, however, that this practice is somewhat disconcerting. Indeed, the use of a pre-prepared sentencing opinion in lieu of an oral recitation creates the worrisome impression that the district court’s decision was etched in stone before the parties had the opportunity to be heard. If that were the case, the procedural safeguards enshrined in Federal Rule of Criminal Procedure 32(i) would be drained of meaning. Consequently, we expressly encourage judges who prepare opinions in advance to be particularly mindful of Rule 32(i)’s requirements. In addition, we observe that a final sentencing decision should not be reached until after the hearing has been completed.
Here is how Judge Martin piles on at the start of his Wilson concurrence:
I concur in the lead opinion, but I feel compelled to comment upon the practice of a judge walking into a sentencing hearing with an opinion already prepared. The lead opinion quite properly discusses the matter in a footnote, as neither party directly took issue with the practice. I write separately because the practice deserves the kind of piling on that cannot be accomplished in a footnote.
US Sentencing Commission seeking comment on reduced criminal history guideline being retroactiveAs detailed in this official Federal Register Notice of request for public comment, the US Sentencing Commission is formally seeking input on whether to make its new defendant-friendly amendment to the criminal history sentencing guidelines retroactive. Here is the USSC's summary from its website of what its doing here:
On April 29, 2010, the Commission submitted to the Congress amendments to the sentencing guidelines and official commentary, which become effective on November 1, 2010, unless Congress acts to the contrary. Such amendments and the reasons for amendment subsequently were published in the Federal Register (75 FR 27388, May 14, 2010). One of the amendments, specifically Amendment 5 pertaining to the use of recency as a factor in the calculation of the criminal history score, has the effect of lowering guideline ranges. The Commission requests comment regarding whether that amendment should be included in subsection (c) of §1B1.10 (Reduction in Term of Imprisonment as a Result of Amended Guideline Range (Policy Statement)) as an amendment that may be applied retroactively to previously sentenced defendants. (75 FR 41279)
Ironically, because Percy Dillon lost his SCOTUS appeals contending that district courts should have broader sentencing discretion when dealing with guideline amendments made retroactive, I predict that the USSC will be much more inclined to make this defendant-friendly amendment (and any other future similar amendments) retroactive. Indeed, the Dillon outcome likely will also make DOJ and others less inclined to categorically oppose retroactivity and to instead urge refined restrictions on exactly who can get to benefit from a new guideline made retroactive.
Recent related posts:
- SCOTUS rules 7-1 against defendant in crack retroactivity case
- Percy Dillon's loss is sure to be other future defendants' gain
California struggling with new challenges posed by GPS technocorrectionsRegular readers know that I view technocorrections like GPS tracking as a common punishment of the future, and that is one reason I find especially notable this local piece detailing California's problems with this form of technocorrections now. The piece is headlined "Sex offenders unwatched as parole struggles with GPS system," and here are excerpts:
Two special reports by the state Office of the Inspector General found Corrections' GPS policies were confused at best and non-existent at worst.
The full technological abilities of the system aren't being used, agents and supervisors aren't properly trained and agents are so overloaded with GPS busy work they aren't able to do other vitally important checks in the field, according to the reports. Overall, the reports concluded, Corrections is not aggressively monitoring sex offenders and the public is being given a "false sense of security."...
"Parole agents are so busy tracking dots on a computer screen, they're not out making home visits, checking the guy's workplace, talking to family members," said Melinda Silva, president of the Parole Agents Association of California. "Agents are spending the bulk of their time running tracks including at home and on the weekends."
Jessica's Law, passed in 2006, started the ball rolling on lifetime GPS monitoring of sex offenders. Then the Garrido report added more responsibilities and the Gardner report still more.
California leads the nation in GPS monitored parolees -- 6,500 -- at a cost of $60 million a year. Depending on arrests, there are typically about 250 sex offender parolees on GPS in Kern County.
Silva said the state isn't taking into account how the program has increased agents' workload and whether the work is actually accomplishing what the public expects. "People believe the GPS means we know where they are 24/7 and we don't," Silva said. "We're paying millions for GPS and we're not getting much out of it because agents don't have time to do the work."
Now, she said, State Sen. George Runner, who authored Proposition 83 establishing Jessica's Law, has a bill involving Facebook, MySpace and other social networking sites that she feared would add even more to agents' plates.
Not so, Runner said. His bill, SB 1204 which has passed the Senate and the Public Safety committee in the Assembly, would simply require that sex offenders register their online and e-mail addresses as well as their instant messaging user names just like they do their physical addresses.
Silva argued that if it becomes a crime for a sex offender not to register their electronic info, that makes it absolutely incumbent on the agent to check the sites. "Who enforces that if not us?" she asked. "It's ludicrous to say there's no extra work."
As for whether the GPS program has been a success, Runner said it's an evolving technology that should not be thought of as a cure-all. "It's just one tool," he said.
There have been successes and failures with GPS, he acknowledged. But he firmly believes the technology and its use will continue to improve. "That said, there have been problems with implementation." And he said he was "frustrated" with some of Corrections' responses to recommendations about how to do better.
Some related older posts on GPS tracking and related technocorrections:
- The technical challenges posed by technocorrections
- State judge makes pitch for ignition locks for drunk drivers
- Is the future parole with GPS and other techno-reentry devices?
- The inevitability of GPS tracking and cost-saving technocorrections
- Another reason to believe GPS technocorrections are inevitable
- Why tight budget times will speed path to technocorrections
- Are microchip implants for offenders inevitable?
- UK getting serious about GPS through microchip implants
- Are we willing to pay the costs of (effective?) technocorrections like GPS tracking?
- More on the pros and cons of GPS tracking
- New article examining incapacitation innovations
July 18, 2010
Effective press coverage of recent DOJ letter to the US Sentencing CommissionMarcia Coyle has this lengthy and effective piece due to appear in tomorrow's National Law Journal under the headline "Justice Department Calls for Probe of Federal Sentencing Patterns; Prosecutors see disparity in fraud, child pornography punishments." Here is how it begins:
During the past four years, federal judges imposed sentences of one to four years on five defendants in the AIG fraud case that caused more than $500 million in losses; 25 years on Ronald Treadwell for a Ponzi scheme involving a $40 million loss; and 3 1/2 years on former Impath Inc. President Richard Adelson for a $50 million securities fraud.
Those widely disparate sentences don't make sense, ignore federal sentencing guidelines and are a sign of a potentially very big problem, according to the U.S. Department of Justice. The DOJ wants the U.S. Sentencing Commission to investigate, with special attention to guidelines for fraud and child pornography crimes. But some sentencing experts say it may be something that the commission does not want to examine too closely.
The department called for a "comprehensive review" of the state of federal sentencing in its most recent annual report to the commission on June 28. In the five years since a U.S. Supreme Court decision struck down the mandatory nature of federal sentencing guidelines, the department said, prosecutors' experiences and data "suggest that federal sentencing practice is fragmenting into at least two distinct and very different sentencing regimes."
If allowed to go unchecked, the two regimes will lead to unwarranted sentencing disparities, disrespect for federal courts and sentencing uncertainty that could lead to more crime, the department said. "More and more, we are receiving reports from our prosecutors that, in many federal courts, a defendant's sentence will largely be determined by the judicial assignment of the case; i.e., which judge in the courthouse will conduct the sentencing," said Jonathan Wroblewski, director of the Criminal Division's office of policy and legislation, in the report.
Some sentencing scholars agree that judges are "straying off the guideline reservation" more frequently since the 2005 ruling in Booker v. U.S., but they disagree on how big a problem this could be. "I do think they're on to something," said former federal judge Paul Cassell of the University of Utah S.J. Quinney College of Law. "It's one of the dirty little secrets of federal sentencing now. There are situations where which judge you pull can drive the sentence."
But, he added, the subject for debate is how widespread the problem may be. "Is it isolated to a few here and there ignoring sentencing guidelines or is this a more general phenomenon? That's where analysis by the [Sentencing] Commission is needed."
The fact that some sentences may be below the guidelines does not demonstrate a disrespect for the guidelines, said Ellen Podgor of Stetson University College of Law. "Rather, it recognizes that these are advisory guidelines for consultation and use in determining a sentence," she said. "It is important to remember that judges are sentencing people and it is not a mere mathematical computation that should control."
Recent related posts on the DOJ letter to the USSC:
- Fascinating assessment of federal sentencing in DOJ annual letter to US Sentencing Commission
- Wasn't pre-Booker federal sentencing an "ongoing source of discord, disunity, and criticism"?
- Is DOJ eager for (and obliquely urging) reducing the severity of the federal sentencing guideline for child porn downloading?
Interesting account of "Five myths about the death penalty"NYU Professor David Garland has this intriguing piece in today's Washington Post under the headline "Five myths about the death penalty." Here is how the Post's editors set up the piece and the five myths set out by Garland:
The death penalty: the punishment we reserve for the worst criminal offenders. Last week, law enforcement officials said it was on the table for four men charged in the shooting deaths of unarmed civilians in New Orleans in the days after Hurricane Katrina. It's a signal that the crimes were truly reprehensible. Much of what we think we know about American capital punishment comes from the longstanding debate that surrounds the institution. But in making their opposing claims, death-penalty proponents and their abolitionist adversaries perpetrate myths and half-truths that distort the facts. The United States' death penalty is not what its supporters -- or its opponents -- would have us believe.
1. The United States is a death-penalty nation.
2. The United States is out of step with Europe and the rest of the Western world.
3. This country has the death penalty because the public supports it.
4. The death penalty works.
5. The death penalty doesn't work.
As the list of myths should highlight, this commentary is not the usual pro- or anti-screed about capital punishment in modern America. Instead, Garland highlights a whole lot of real-world nuance and, in so doing, gets me extra excited to read his forthcoming book titled "Peculiar Institution: America's Death Penalty in an Age of Abolition."