August 16, 2010
Two interesting (and very different) sentencing procedure rulings from the Third CircuitBack from a summer weekend, the federal circuit courts have handed down today a lot of noteworthy sentencing decision, and two from the Third Circuit seem especially blogworthy. Here are links and the starting paragraphs from the work of two different Third Circuit panels today:
USA v. Doe, No. 09-2615 (3d Cir. Aug. 16, 2010) (available here):
This appeal asks whether 18 U.S.C. § 3582(a), which forbids a district court from imposing a term of imprisonment at initial sentencing for the purpose of drug rehabilitation, restricts a district court from considering medical and rehabilitative needs when revoking a defendant’s supervised release and requiring the defendant to serve the remainder of his sentence in prison. The District Court sentenced the defendant, John Doe, to 24 months of imprisonment upon revocation of his supervised release with the objective of helping him recover from his cocaine addiction. On appeal, Doe challenges the procedural and substantive reasonableness of that sentence. Because we hold that the plain language of § 3583(e) governing discretionary revocation of supervised release expressly requires consideration of medical needs, we will affirm.
Newman v. Beard, No. 08-2652 (3d Cir. Aug. 16, 2010) (available here):
Appellant Clifford Newman, a convicted sex offender, argues that the Parole Board violated his First Amendment right, his right to due process, and the Ex Post Facto Clause of the Constitution by using his refusal to admit his guilt to adversely affect his eligibility for parole.
The defendant in this second case has persistently and consistently denied his guilt to the two rapes for which he was convicted and sentenced in the early 1980s. And though the Third Circuit claims in its ruling in Newman that "accepts all factual allegations as true" when considering the defendant's appeal from the dismissal of his federal 1983 action, the panel later cites Herrera for the proposition that Newman is to be considered legally guilty for purposes of his claim because he had been convicted in a court of law.
In other words, in addition to spotlighting the parole challenges faced by an incarcerated defendant (particularly a sex offender) who maintains his innocence, the particualr procedure posture of the Newman case before the Third Circuit leaves me unsatisfied with the Third Circuit's rejection of the defendant's claims. If the panel really were to accept as true the defendant's allegation that he is indeed factually innocent, then he does seem to have at least a plausible claim that requiring him to falsely admit his guilt in order to have a meaningful chance for parole release is constitutionally problematic.
Below-guideline (but still significant) prison sentence for scientist convicted of violating a trade embargo with Iran
This AP story headlined "Iran-embargo defendant gets 2 1/2 years in prison" and this BusinessWeek story headlined "Ex-McKinsey Consultant Gets 2 1/2 Years in Iran Case," both report on an interesting and unusual federal sentencing today in NYC. Here are the basics frm the BusinessWeek account:
Former McKinsey & Co. consultant Mahmoud Reza Banki was sentenced to 2 1/2 years in prison for violating the Iran trade embargo and running an unlicensed money-transfer business. Banki, a naturalized U.S. citizen born in Iran, was accused of running a “value-transfer” business that essentially moved money to residents of Iran from 2006 to 2009 in violation of the U.S. embargo.
Banki received about $4.7 million as part of the transfer process and used the money to buy a $2.4 million condominium, invest in securities and pay credit-card bills, the government charged.
“I deeply regret everything that has happened,” Banki told U.S. District Judge John Keenan before his sentencing. “I will learn from it and be a better man.”
Keenan said sentencing guidelines called for 63 to 78 months, which he said was too long. He called Banki “a highly educated young man” who was unlikely to return to criminal activity. Banki, 35, has a PhD from Princeton in chemical engineering.
A federal jury in New York convicted Banki in June of all five charges against him. Banki has been in custody since his arrest in January.
The AP report add these interesting details:
Mahmoud Reza Banki winced when his sentence was announced, and numerous spectators among his more than 50 supporters cried openly or wiped tears.
Banki, 35, had faced up to 25 years in prison after he was convicted in June, but even federal prosecutors conceded that the unusual aspects of the case meant that Banki deserved a reduction from the more than five years in prison that sentencing guidelines recommended....
Banki's attorney, Baruch Weiss, asked Keenan to let his client go free, saying the seven months he has spent in prison since his arrest were sufficient. Weiss said Banki wanted to return to his dream of finding ways to finance stem cell research so replacement organs such as kidneys could be produced without the need for donors....
In a presentence letter to the court, the government highlighted the threat to national security that it believes hawalas pose, saying "financial transactions with a country supporting international terrorism implicate national security by definition."
It said funds transferred to Iran are inevitably used to strengthen Iran's economy. "This — the strengthening of the economy of a country that supports international terrorism — is exactly what the embargo was designed to avoid," the government wrote. The government also accused Banki of using the money sent to him by his father to invest in a home and securities and "to finance a lavish lifestyle."
The judge has signed an order requiring Banki to forfeit the $3.4 million. Weiss said Banki will appeal his conviction and the forfeiture order.
"More Different than Life, Less Different than Death"
The title of this post is the title of this terrific-looking new piece by William Berry which discusses the Supreme Court's recent work in the juve LWOP case of Graham v. Florida and makes an argument for LWOP sentences to receive a unique form of Eighth Amendment scrutiny. Here is the piece's abstract:
The Supreme Court has traditionally divided its application of the Eighth Amendment into two categories, capital and non-capital cases, based on the longstanding notion that “death- is-different.” In the recent case of Graham v. Florida, however, the Supreme Court applied its “evolving standards of decency” standard, heretofore reserved for capital cases, to a non-capital case in holding that the Eighth Amendment prohibited states from sentencing juvenile offenders to life without parole for non-homicide crimes. The dissenting justices argued that this decision marked the end of the Court’s “death-is-different” jurisprudence.
This article argues, however, that the decision instead creates the opportunity to establish a new category of Eighth Amendment review for life without parole sentences. While life without parole may not be as “different” from other sentences as death, it is still “different” enough to warrant its own set of heightened standards of Eighth Amendment review.
Part One of the article describes the dichotomy between capital and non-capital cases in the Supreme Court’s Eighth Amendment jurisprudence and the application of these two lines of cases in Graham v. Florida. Part Two of the article explains why life without parole, a sentence to die in prison, is “different” in its own way. Part Three then argues for the application of a new category of standards under the Eighth Amendment in life without parole cases, and suggests other possible implications of Graham.
Fascinating juve crime and modern parole story from GeorgiaThe front-page of CNN.com has this interesting story of crime and punishment from Georgia that implicates a lot of modern issues about sentencing law, policy and practice. The piece is headlined "Family uses killer's letters to keep him behind bars," and here is how it gets started:
Billy Ray White vowed 20 years ago that when he got out of prison, he would track down the relatives of the man he'd murdered and subject them to gruesome deaths. In a handwritten letter to J.D. Hall's daughter, the convicted killer promised to carve her up like a turkey and make her head into a flower pot. In another letter to Hall's son, he said he would put him through a meat grinder and force his relatives to eat him....
The letters were from "Charles Manson," but White has admitted to writing them. In a 1991 letter to the Georgia State Board of Pardons and Parole, he acknowledged that writing them was a "stupid thing" to do and asked for forgiveness. But the letters continue to haunt him, just as they do the recipients.
In late June, White was denied parole for the sixth time since he was sentenced in 1985 to two consecutive life sentences plus 10 years for Hall's murder, armed robbery and theft of a motor vehicle, a parole board spokesman said. Prosecutors and the Hall family received the news from the parole board last month after mounting an impassioned campaign to keep White behind bars, citing fears that he would make good on his threats....
But the debate is not over. His parole comes up again for reconsideration next April, in a scenario that plays out similarly every day across the country, pitting the interests of surviving victims against the rights of convicts to re-enter society if deemed ready.
White was sentenced to two life sentences before the era of life without parole. Had he been sentenced today, he would be a likely candidate for life without parole, said University of Georgia law professor Ronald Carlson.
"This is a classic case of how parole boards have to balance a commendable life after the crime versus the heinousness of the offense, but that's somewhat of a diminishing problem because we have now life without parole for this sort of crime," Carlson said. "In the interim, there's going to be some dramatic cases where prisoners who've done some pretty awful things are going to try to get parole."
The burden is on the prisoner to convince the board that he is not a future danger to society and that his efforts to rehabilitate himself outweigh the heinousness of his crime. "One of the things that's key to the decision-making process is, frankly, an educated guess," Carlson said. "The board is informed, but there's still no scientific judgment available about future dangerousness of an applicant."...
Unlike many convicts seeking parole, according to Carlson, White has someone in his corner. His sister Judy says he is a different person from the "troubled teen" who shot Hall at his home in Douglasville, Georgia.
The woman, who asked that her last name not be used out of fear of reprisal, said people might understand her brother better if they knew of the neglect and abuse he endured as the child of alcoholic parents. "They're reviewing him on those stupid letters -- which he completely regrets -- but he was a young teenager when all this happened. He's 39 now," his sister said in a phone interview from her Florida home. "He just wants a chance to prove to the world that he's changed."
White has spent most of his life in state custody. He was 13 when he shot Hall in the face on the morning of March 30, 1985.... White never denied shooting Hall, a well-known member of the community who ran a family-owned grocery store and a construction company.
Because of his age, White was not eligible for the death penalty. Georgia law at the time did not have life without parole, so he was sentenced to two consecutive life terms plus 10 years. The question of whether he would be released has always been a matter for the Georgia Parole Board.
White was four years into his sentence when he sent letters to Hall's widow and three children. "I might be 39 or 40 when I get out but I'll still be in prime shape," he said in the letter to Hall's widow, who, according to her family, has never read it....
Douglas County District Attorney David McDade, who prosecuted White in 1985, has led the fight to keep him in prison, citing the nature of his crime, his failure to show remorse and, not surprisingly, the letters.
August 15, 2010
"Electronic bracelets to track gun-toting Memphis juveniles"
The title of this post is the notable headline of this notable local article from Tennessee. Here are the intriguing particulars of one of the the latest use of technocorrections (which is being funded by federal tax dollars):
Memphis police want to stop gun-toting teens in their tracks -- literally.
Police Director Larry Godwin is teaming with Memphis Mayor A C Wharton to develop a pilot program that monitors the steps of troubled teens through advanced electronic tracking bracelets. It's part of a $2 million, federally funded program to curtail crime using tracking equipment that can pinpoint a detainee's exact location.....
Godwin ... and the mayor are teaming to develop a proposed pilot program, "Cease-Fire for Juveniles." The initiative, modeled partly after a similar program in St. Louis, allows police and court officials to supervise the teen for one year through an electronic ankle bracelet....
Unlike some other tracking devices, the bracelets used in this program would keep a record of everywhere the detainee goes, transmitting the data in real time to a police department server, Memphis police Col. Jim Harvey said.
Using special software, police can build a virtual fence around a teen offender's home, with the computer monitoring if the teen is staying put during curfew. If the teen leaves his yard, a police computer will automatically generate an alert. With sex offenders, police can place a virtual fence around area schools and daycare centers. If the offender crosses onto forbidden turf, police will get an alert.
Harvey, who is overseeing the logistics of the monitoring, said this program has the potential to drastically reduce the city's crime rate. "If there's a burglar walking down the street and he sees a police officer, he's not going to break into that house or business," Harvey said. "Now, the way I look at it, he's going to be wearing a police officer on his leg."
In the program's first year, the department plans to track up to 1,000 juvenile and adult offenders in Shelby County and up to 500 in nearby urban areas tracked by federal programs -- Fayette, Tipton and Lauderdale counties and DeSoto County, Miss., and Crittenden County, Ark.
The juvenile program would be voluntary, so the teen and parents would have to agree to participate. If the minors stay out of trouble for one year, the initial gun-possession charge would be erased from their record.
Through the program, the parent would also have to allow random police searches of the teen's bedroom. If the teen is caught with drugs or another gun, he or she would get kicked out of the program and would face the consequences of violating probation, police said.
Veteran defense attorney James Sanders said the program sounds promising, but he would first want to ensure the parent wouldn't be blamed if the search yielded a weapon or drugs in the teen's room.... The program would also require the minor to complete 40 hours of community service and attend training, which includes straight talk from a former gang member.
Potent opinion piece asserting "justice denied" in the Rubashkin caseAppearing now in the National Law Journal is this potent commentaryby Professor Robert Steinbuch and former US Attorney Brett Tolman, which is headlined "Justice denied: Rubashkin's sentence is wholly inappropriate for the crimes of which he was convicted." Most of the piece covers ground familiar to anyone who has followed this high-profile white-collar case out of Iowa, though the piece concludes by discussing a relatively new development in the case related to pre-trial contacts between the presiding judge, Chief Judge Linda Reade of the Northern District of Iowa, and federal prosecutors:
In February 2009, prior to Rubashkin's trial, his attorneys made a Freedom of Information Act request to ICE seeking documents concerning Rubashkin and the raid upon the facility. ICE didn't produce the documents. His attorneys sued. More than a year later, they finally obtained redacted documents from ICE. The documents are startling. They show that Reade had ongoing ex parte contacts with the U.S. attorney's office and ICE about the matter beginning six months prior to Rubashkin's arrest. These meetings covered operational and strategic topics that went far beyond the mere "logistical cooperation" that Reade had insisted was the limit of her interaction when she denied a recusal motion from an unrelated defendant in the case. The newly discovered ICE memoranda belie this claim.
The documents reveal that Rubashkin's arrest appears to have been timed to accommodate Reade's personal vacation schedule; Reade and the U.S. attorney's staff "surveyed" the location where the detainees would be held and their trials conducted; Reade expressed her personal commitment "to support the operation in any way possible"; Reade personally participated in meetings that covered "an overview of charging strategies" to follow the raid; and Reade demanded sua sponte from the prosecutors "a final gameplan in two weeks" and a "briefing on how the operation will be conducted."
Reade never disclosed her attendance at, and active personal participation in, these meetings. Rubashkin's attorneys have moved to have her retroactively recused. The motion requests that another judge decide the question. We'll see whether she accedes to this request. The attorneys are also considering filing complaints with the U.S. Justice Department against the prosecutors for failing to disclose their contacts with Reade.
The Rubashkin legal team earlier this month filed a motion for a new trial (supported by this memo of law) based on the pre-trial contacts between Chief Judge Reade and federal prosecutors. It will be interesting to see how prosecutors and Chief Judge Reade respond to this motion. (Full disclosure: I have provided some assistance on sentencing matters to some persons directly involved in the Rubashkin case.)
Related posts on the Rubashkin case:
- Can and should religious considerations influence bail decisions?
- Federal sentencing hearing starting in high-profile Rubashkin white-collar case
- Federal prosecutors now seeking 25-year prison term for Rubashkin
- "More Former AGs Question Sentence Sought in Bank Fraud Case"
- Kosher plant chief Sholom Rubashkin sentenced to 27 years imprisonment
Should we be pleased or frustrated when an accused murderer commits suicide while in custody?The provocative question in the title for this post is inspired by this breaking news via CNN, which is headlined "Police: Accused Craigslist killer dead of apparent suicide." Here are the story basics:
A onetime medical student who was facing charges including first-degree murder in a killing tied to the Craigslist website died Sunday of an apparent suicide, police said. Philip Markoff was found in his Nashua Street Jail cell at 10:17 a.m. Sunday and pronounced dead by medics, said Steven Tompkins, spokesman for the Suffolk County, Massachusetts, Sheriff's Office.
Markoff, 24, was charged with the April 14, 2009, fatal shooting and attempted robbery of Julissa Brisman, 25, at Boston's Copley Marriott Hotel. Police said that Brisman, a model, advertised as a masseuse on Craiglist, a popular online classifieds service, and said Markoff may have met her through the site.
Markoff was also charged with the April 10, 2009, robbery of Trisha Leffler at a Westin Hotel in Boston. Police reports said Leffler was robbed of $800 in cash and $250 in American Express gift cards and was held at gunpoint and bound....
He also was facing charges in an April 16, 2009, incident at a Holiday Inn Express in Warwick, Rhode Island. In that incident, police said Markoff tied up and demanded money from a 26-year-old dancer who had posted a Craigslist advertisement. The robbery was interrupted when the woman's husband entered the room, and the suspect fled after pointing his gun at the husband, according to Warwick Police Chief Col. Stephen McCartney.
At the time of his April 2009 arrest, Markoff was a second-year student at Boston University's School of Medicine and was engaged to be married. His friends and acquaintances expressed shock, describing him as a model student and the "all-American" guy.
A woman identifying herself as Megan McAllister, his fiancee, maintained his innocence in an April 2009 e-mail sent to ABC News, saying Markoff "is the wrong man" and "was set up." "Unfortunately, you were given the wrong information as was the public," she said. "All I have to say to you is Philip is a beautiful person inside and out and could not hurt a fly!" Markoff's attorney had also proclaimed his innocence.
Suffolk County District Attorney Daniel Conley told reporters last year that Brisman's death was "a brutal, vicious crime -- savage. And it shows that Philip Markoff is a man who's willing to take advantage of women -- to hurt them, to beat them, to rob them." Brisman sustained blunt head trauma, and was shot three times at close range, prosecutors said. Conley said they believe the motive for her death was robbery.
In executing a search warrant at Markoff's home, police found a firearm, along with restraints and duct tape, he said. Surveillance videos from the hotel where Brisman was killed showed a tall, clean-cut young blond man in a black windbreaker leaving the property, according to Boston police, who had sought public assistance in identifying the man.
Of course, if Philip Markoff truly was innocent of murder, his suicide compounds the tragedy of a wrongful accusation (and further heightens the risk that the real killer will never be sought or found). But assuming he was guilty, my first reaction here is to be pleased. By killing himself, Markoff saved a lot of time, money and energy for those who would be tasked with prosecuting and defending him. And the family of his victim would, I hope, get some measure of closure from Markoff's death.
I wonder, however, if everyone share my reaction, which is obviously very utilitarian. For anyone who embraces a more retributivist or expressive/educative or even restorative justice perspective, perhaps Markoff's death is more frustrating than pleasing. By taking his own life, Markoff in a sense was able to escape the traditional societal process of seeking and imposing justice on a wrong-doer. (I suppose a deeply religious retributivist might take comfort in the notion he will meet justice in the afterlife, but I am not even sure if a belief in this kind higher justice is enough to make one pleased Markoff sped his own journey to the afterlife.)
UPDATE: I notice that Ashby Jones over at the WSJ Blog here (and now also Above the Law here) has picked up on my comments in this post, which reinforces my sense that my (too frank?) comments or perhaps my inopportune choice of words has touched a nerve. In addition to prompting a lot of interesting and strong comments below, this post has led to me getting at least one hateful anonymous comment via e-mail.
If anyone finds this post offensive, I hope they will explain just what bothers them and why. I surmise from some comments that the fact that Philip Markoff had not been duly convicted in a court of law is consequential. For others, perhaps the terms I use or my particularly cold utilitarian analysis is disquieting. Whatever the particulars, I hope the discussion continues (ideally without having to receive any more hateful anonymous e-mails).
"What price is too high for death row?"The question in the title of this post come from the headline of this editorial in today's Sacramento Bee. Here are excerpts:
In a twisted sense of timing, Gov. Arnold Schwarzenegger has placed the exorbitant cost of California's theoretical death penalty squarely before the public again.
The Schwarzenegger administration announced last week that it plans to borrow $64.7 million from the state's cash-strapped general fund to accelerate construction of a new death row at San Quentin State Prison....
The $64.7 million is merely a down payment. Construction would cost about $360 million. Interest payments on 20-year bonds the state ordinarily would sell to finance the construction could add another $150 million or more to the final price tag....
The plan to build a shiny new 541,000-square-foot death row within San Quentin's boundaries underscores fundamental problems with capital punishment. So long as there is a death penalty, the state will need to house, clothe and feed the inmates at huge costs. San Quentin sits on prime bayfront property in Marin County. It could be sold for a fortune and turned into housing, a transit hub, a ferry port and much more.
However, lawmakers cannot agree to close San Quentin. Nor are they prepared to abolish capital punishment, given that Californians support it by a wide margin. The U.S. Supreme Court and California Supreme Court seem willing to permit the process to continue, knowing that it is more likely that someone will be struck by lightning than die by lethal injection or gas.
California has 706 condemned inmates, by far the largest condemned population of any state. Since capital punishment was reinstated in California in 1978, 13 men have been put to death at San Quentin. Another 73 others have died of suicide, drug overdose and natural causes, including one last week.
The longest serving inmate, Douglas R. Stankewitz, has been on death row since Oct. 13, 1978. The oldest, David J. Carpenter, the "Trailside Killer," became an octogenarian this year. There hasn't been an execution since January 2006, and there's no certainty there will be any executions any time soon.
In California, the death penalty is conceptual. There simply are too many smart attorneys who can mount too many arguments that will persuade too many judges to place executions on hold. So long as we retain this broken system, taxpayers will be condemned to pay the price – in this instance, about $500 million for a new death row.