« September 12, 2010 - September 18, 2010 | Main | September 26, 2010 - October 2, 2010 »

September 25, 2010

Taking stock of fraud law and cases impacted by the SCOTUS Skilling ruling

Today's Wall Street Journal includes this effective article headlined "Fraud Cases Get Rehashed After Court Ruling." Here are excerpts:

Federal lawmakers and Justice Department officials are weighing new legislation to salvage a fraud statute used to pursue corporate and public corruption, as prosecutors grapple with the fallout of a Supreme Court ruling that weakened the law.

The court's decision in June to limit prosecutions for honest-services fraud has affected cases against high-profile defendants such as former Enron Chief Executive Jeffrey Skilling, whose appeal was the basis for the ruling, and lesser-known ones such as Edward J. Price III, the former mayor of Mandeville, La.

The law, making it a crime to deprive someone of the "intangible right of honest services," has long been used to prosecute officials or executives accused of placing their interests above those of taxpayers or shareholders. Defense lawyers criticized it as unconstitutionally vague.

Mr. Price cut a deal with prosecutors to shave two years off the 64-month prison term he received a week before the Supreme Court ruling invalidated part of his guilty plea. He admitted taking golf trips to Pebble Beach, Calif., paid for by a developer and the city engineer. A judge is to impose a new sentence Wednesday. "It's the first time in 38 or 39 years that I've done this sort of thing in federal court," said Mr. Price's lawyer, Ralph S. Whalen Jr. Louisiana prosecutors declined to comment.

The Supreme Court said the law clearly criminalized bribery and kickbacks, but was too vague to continue to be used against undisclosed conflicts of interest, where the evidence of corruption is more subtle.  Lanny Breuer, head of the Justice Department's criminal division, is expected to testify before the Senate Judiciary Committee Tuesday on the ruling's impact.

Justice Department officials and congressional staff are discussing how to close what they believe is a legal hole left by the high court, people familiar with the matter say.  Sen. Patrick Leahy (D., Vt.), the Judiciary Committee chairman, said Friday, "whole categories of corrupt and fraudulent conduct could go unpunished" because of the ruling. He said he was working with colleagues "to determine how best to clarify and restore this statute."...

[T]he ruling appears to have deterred prosecutors from bringing charges they would have brought before.  An analysis of federal prosecutions across the U.S. shows that pattern began even before the ruling, as the government and defense lawyers likely began to anticipate it.

In 2008 and 2009, the government brought honest-services fraud charges in more than 100 cases a year, the analysis shows.  The pace slowed in the second half of last year, after the Supreme Court agreed to review three cases, including Mr. Skilling's and former media mogul Conrad Black's. This year, new prosecutions using the statute slowed to a trickle....

So far, only a few cases have been totally upended. A New Jersey judge tossed out the conviction of Joseph Ferriero, the former Bergen County Democratic chairman; prosecutors haven't said whether they would seek a new indictment in the case. Prosecutors in Kansas dropped charges against Westar Energy executives.

Among the big-name defendants seeking to revisit cases are former Illinois Gov. George Ryan, ex-Alabama Gov. Don Siegelman, former HealthSouth chief Richard Scrushy, ex-New York Senate leader Joseph Bruno, and plaintiffs' lawyer Zach Scruggs. Mr. Black, released from prison pending a review of his conviction, is scheduled for a hearing in Chicago Wednesday.

September 25, 2010 in Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

September 24, 2010

Federal ruling seems to push California toward one-drug execution protocol

As detailed in this new article in the San Jose Mercury News, which is headlined "Judge may allow execution to go forward," California is (perhaps?) getting closer to resume executions after a five year hiatus.  Here are the particulars from a new ruling from the federal judge who put the system on hold way back in 2006:

A federal judge today refused to block the scheduled execution next week of a condemned Riverside County killer, but put a wrinkle in his ruling that may mean the inmate can only be put to death with a fatal dose of one anesthetic drug and not the three-drug procedure recently adopted by California prison officials.

U.S. District Judge Jeremy Fogel gave Albert Greenwood Brown, scheduled to be executed next Wednesday, until Saturday evening to request an execution with a single drug, a departure from California's preferred and planned method of administering lethal injection. If he does so and California officials refuse to comply with that restriction, Fogel said he will block the planned execution of Brown, on death row since 1982 for the rape and murder of a 15-year-old girl.

In an 11-page order, Fogel concluded that he does not have the legal authority to block Brown's Sept. 29 execution unless state officials fail to take steps that he believes address concerns that the lethal injection method will not cause a cruel and inhumane death. The judge indicated that a fatal dose of sodium thiopental may avoid the chief worry in lethal injection executions: that the two drug administered later would mask that face that an inmate experiences agonizing pain before being declared dead.

Fogel noted that nine single-drug executions have been carried out in Ohio and Washington without any "apparent difficulty." In what is a high-stakes decision, if Brown does not opt to be executed with the single drug, the judge did find that California can proceed with the execution under its usual three-drug procedure.

UPDATE:  The full 11-page ruling reference above can be accessed at this link thanks to Crime & Consequences.

September 24, 2010 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (8) | TrackBack

Lindsay Lohan saga continues, as she is hauled off to jail again

As detailed in this CBS News piece, the latest installment of a (now tiresome?) starlet drama unfolded in a Los Angeles courtroom today:

Actress Lindsay Lohan is back behind bars after failing a court-ordered drug test. A Los Angeles judge has refused to set bail and ordered her to remain in custody.

Immediately following Friday's hearing, which lasted only ten minutes, bailiffs escorted the 24-year-old Lohan from the Beverly Hills courtroom. Her next stop was the Century Regional Detention Center in Lynwood, the same facility she was released from less than two months ago....

[This] will be Lohan's third jail stint in a 3-year-old drug and drunken driving case after a pair of high-profile arrests in 2007. The only difference from her previous jail stints is that this time Lohan will not be released early.

Two weeks ago, Lohan tested positive for cocaine and amphetamines at a random drug screening, and then admitted her failure via Twitter calling it a "setback," reports RadarOnline. After publicly admitting her "setback," a judge issued a warrant for her arrest, which led to today's court appearance.

According to People, "She's being held by court order until her hearing on Oct. 22. She will be held in the same conditions as her last stay, in a keep-away unit." Until that formal probation violation hearing, Lohan will have to sit tight for 28 days in her 8 by 12-foot jail cell to learn her sentence for failing two court-ordered drug tests.

UPDATE:  State judges ultimately allowed Lohan to make bail, leading the Los Angeles Times to explore an enduring question in this piece headlined "Did Lindsay Lohan get special treatment? Some experts say yes, others say no".

September 24, 2010 in Celebrity sentencings | Permalink | Comments (3) | TrackBack

"Why Parents Should Support Legalizing Pot"

The title of this post is the headline of this notable commentary at AlterNet by Hanna Liebman Dershowitz, a lawyer in California who is co-chair of the Proposition 19 legal subcommittee. Here are excerpts:

My son just started kindergarten. So naturally, I have been thinking a lot about the type of world and community in which I want him and our seven-year-old daughter to live.  I am involved in a project to improve school lunches in our district to reinforce the nutrition lessons we teach in our home.  I am a founding board member of a community group trying to improve our city’s parks.  And I am working to help pass Proposition 19, the initiative to control and tax marijuana in California. It is important to me as a mother that my children grow up in a state —- hopefully a country soon —- that rejects the ineffective and damaging policy of marijuana prohibition.  It may be counterintuitive, but legalizing marijuana will be better and safer for our children.

I would like to believe my kids won’t ever choose to use drugs.  But whatever happens, it is certain that prohibition does not stop kids from using marijuana, and that my kids will be exposed to it along with other risky behaviors.  After all, about a third of high school seniors have used marijuana within the last year, a figure that has been relatively stable over decades across the country and has not been affected by variations in laws and enforcement.  Moreover, it has long been easier for kids to get marijuana than it is for them to get alcohol.  The plain fact is drug dealers don’t require ID, and legitimate businesses do.  By taking marijuana out of the black market and placing it within the confines of safe, regulated, and licensed businesses that only sell to those 21 and over, Proposition 19 would actually reduce underage access to marijuana.

While we don’t want our kids to try marijuana, if they do later on it can lead to very harsh consequences if they are caught, even for actions that are not harmful to others.  And this next part is really scary: when a person is convicted of a marijuana offense, he or she is precluded from receiving federal student loans, will forever have a drug record that diminishes job prospects, and is precluded from many other benefits, not to mention being arrested, possibly serving time, and other harsh and harrowing outcomes. We don’t prevent even violent criminals from getting student loans. Or underage drinkers, for that matter....

To truly serve public safety, we should control and tax marijuana, since under present policies, thousands of violent crimes go unsolved, while police spend valuable and scarce resources targeting thousands of non-violent adult marijuana users.  Arrests for simple possession of marijuana have tripled over the last two decades. The $300 million California spends each year on marijuana enforcement would better serve our communities spent on solving and preventing violent crimes. Any new tax revenues would better serve our children if spent on drug education, drug rehabilitation, and of course shoring up our crumbling public education system....

We know our children are going to make decisions for themselves, probably at an age we think is too young.  Laws are not going to be nearly as effective in guiding those choices as the messages we send to them as parents and in our public education efforts. We need to help kids navigate into adulthood with the judgment to moderate their intake of so many substances capable of abuse — from sugar to caffeine, alcohol, prescription drugs, and, yes, marijuana. Not to mention making good decisions about sex, Internet usage, driving, studying, and extracurricular activities.  As a mother, thinking through the list, I am not most terrified by the choices they might make regarding marijuana.... As parents, we know that education is often more effective than punishment, and in some cases punishment is not effective at all.

Women were instrumental in bringing about repeal of Prohibition in 1933, and we can be again when it comes to determining when marijuana prohibition is reversed. In my view, Proposition 19 is the right choice —- not just for true law and order —- but for our kids.

September 24, 2010 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (4) | TrackBack

Some notable execution news and notes (outside Virginia)

Virginia has been at the center of debates over executions and the administration the death penalty in recent weeks because of the Teresa Lewis case.  But, with Lewis being executed last night (details here), today the focus turns to a number of notable death penalty cases in other states.  Here are a review (with links) of some of the death penalty stories emerging from various locales:

September 24, 2010 in Baze lethal injection case, Death Penalty Reforms | Permalink | Comments (0) | TrackBack

Can GOP "Pledge to America" be read to suggest drawing down federal involvement in the drug war?

The federal GOP leaders who put together the new "Pledge to America" (available here and here) obviously did not give much thought to the drug war and mass incarceration.  In fact, I searched in vain for any significant mention of any crime and punishment issues in the "Pledge to America" (save for a brief mention of fighting against terrorism and illegal immigration).

Nevertheless, in light of the on-going local, state and national debates over marijunana policy and politics, I could not help but see some of these lines from the Pledge to be supportive of efforts by libertarians and others to urge a deescalation of the drug war at the federal level:

America is an idea – an idea that free people can govern themselves, that government’s powers are derived from the consent of the governed, that each of us is endowed by their Creator with the unalienable rights to life, liberty, and the pursuit of happiness....

America is an inspiration to those who yearn to be free and have the ability and the dignity to determine their own destiny....

We pledge to advance policies that promote greater liberty, wider opportunity, a robust defense, and national economic prosperity....

It’s time to do away with the old politics: that much is clear....

Our plan stands on the principles of smaller, more accountable government; economic freedom; lower taxes; fiscal responsibility; protecting life, American values, and the Constitution; and providing for a robust national defense.....

We will launch a sustained effort to stem the relentless growth in government that has occurred over the past decade.

Especially in light of GOP Representative Lamar Smith's recent comments assailing the Obama Adminstration for not getting tougher in the drug war (discussed here), I am certain that the GOP authors of the "Pledge to America" do not mean or want this pledge to be seen as taking any position on marijuana legalization or any other federal drug crime issues.  Still, I find it interesting and useful to think about growth in federal size and spending, as well as the impingement on liberty and on all those who "yearn to be free and have the ability and the dignity to determine their own destiny," that has resulted from the federal government wagging a war on drugs over the last four decades.

Some related posts on pot policy and politics:

September 24, 2010 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing | Permalink | Comments (15) | TrackBack

"Misconduct cases taint justice in Iowa"

The title of this post is the headline of this new article in the Des Moines Register, which provides a local follow-up to the blockbuster report on federal prosecutorial misconduct published yesterday in USA Today (discussed here).  Here are excerpts from this new piece:

Prosecutorial misconduct by U.S. attorneys in Iowa has triggered serious consequences in felony cases involving drug distribution, bank robbery and other major crimes, resulting in reduced sentences, costly new trials and an acquittal, court records show.

Judges say it's unusual for the missteps of U.S. attorneys in the state to be serious enough to overshadow the often powerful evidence against defendants in federal cases or to warrant relief for defendants. But it does happen. "I can tell you it's not a frequent occurrence," said U.S. District Judge Robert Pratt, based in Des Moines. "But even if it happens one time, that's too many."...

A sampling of 10 instances of misconduct involving Iowa prosecutors since 1998, collected by USA Today, shows prosecutors in both the state's Northern and Southern districts have withheld exculpatory evidence, made false statements, tainted defendants in front of juries and acted in bad faith after making plea agreements. In each of the cases, judges were compelled to take action on behalf of defendants or reprimand government attorneys.

September 24, 2010 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

September 23, 2010

Virginia carries out execution of Teresa Lewis

As detailed in this new Washington Post story, "Teresa Lewis, who plotted with a young lover to kill her husband and stepson for insurance money, became the first woman executed in Virginia in nearly 100 years Thursday night when she was killed by lethal injection." Here are more details of what makes this execution notable:

Lewis is the 12th woman to be executed in the United States since capital punishment was reinstated in 1976. The most recent was in Texas in 2005, when Frances Newton was killed by lethal injection for shooting her husband and two children.

Although the fight for Lewis's life did not draw nearly the attention of that surrounding Karla Faye Tucker, the pickax killer turned born-again Christian executed in 1998, more than 5,500 people signed an electronic petition asking McDonnell to spare her.

The Virginia Catholic Conference, the Virginia Conference of the United Methodist Church and the ARC of Virginia, which advocates for people with mental disabilities, were among the groups that urged that Lewis's sentence be commuted to life in prison....

Her supporters never said that Lewis was innocent or that she shouldn't be punished. But they said she did not deserve to die because she was borderline mentally retarded, with the intellectual ability of about a 13-year-old, and was manipulated by a smarter conspirator. It was wrong for her to be sentenced to death, they said, when the two men who fired the shots received life terms.

This related story in The National Law Journal is headlined "Attorney: Teresa Lewis a 'Poster Child' for Broken Death Penalty System."

September 23, 2010 in Death Penalty Reforms, Offender Characteristics, Race, Class, and Gender | Permalink | Comments (37) | TrackBack

"Jailhouse Stocks Slip as Trends Shift"

The title of this post is the headline of this notable piece from The Street, which provides a market-based perspective on the private prison industry.  Here are excerpts:

Corrections Corp. of America (CXW) and Geo Group (GEO), the largest U.S. prison operators with a combined 86% market share, have long been touted as ironclad investments based on two trends: the rising prison population and government outsourcing of penal services. But those companies' lock on the industry is loosening.

The Federal Bureau of Investigation last week reported that violent crimes fell 6.1% in 2009, the third consecutive year of declines in such crimes, the type that most frequently contribute to lengthy jail sentences. Also in 2009, the state prison population dropped for the first time in 38 years, by 0.3%. While small, that came as a surprise, given the eightfold increase between 1972 and 2008, the Pew Center on the States reported.

Criminologists cite a variety of reasons for the trends: an aging population, the recession and judges' increasing willingness to seek alternatives to prison sentences, such as putting non-violent offenders on probation, releasing well-behaved prisoners earlier than required under sentencing guidelines, or giving some home detention and equipping them with ankle bracelets for monitoring.

Those factors keep a lid on growth in the prison population, which bodes poorly for the private-prison industry. That's already showing up in the numbers....

Still, some analysts give Corrections Corp. of America and Geo high marks, primarily based on the expectation that government entities will increasingly outsource detention services as cost-effective alternatives to making the huge investment it takes to build new prisons and staff them.

Barclays Capital analyst Manav Patnaik, who has "buy" ratings on both firms, said in a recent research report that state prisons still anticipate their inmate populations will grow. And only four states have authorized funding for new prison construction next year, and none acted upon it, suggesting demand for new private-prison housing will continue.

September 23, 2010 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4) | TrackBack

Ninth Circuit rejects Eighth Amendment challenge to LWOP for second offense of child molestation

The Ninth Circuit has an interesting habeas sentencing opinion today in Norris v. Morgan, No. 08-35645 (9th Cir. Sept. 23, 2010) (available here).  Here is how it gets started:

Brach E. Norris was convicted by a jury of child molestation in the first-degree. Norris had also had been convicted of child molestation ten years earlier. The State of Washington’s “two strikes” law for repeat sex offenders provides for a mandatory sentence of life in prison without the possibility of parole, and Norris was so sentenced.  Invoking the Eighth Amendment’s prohibition against cruel and unusual punishment, Norris challenges his sentence as grossly disproportionate to his offense.

The Washington Court of Appeals denied Norris’s claim, holding his life-without-parole sentence not grossly disproportionate to his crime.  On habeas review, we decide whether the Washington Court of Appeals’s decision denying Norris’s claim “was contrary to, or involved an unreasonable application of, clearly established federal law.” 28 U.S.C. § 2254(d)(1).  We conclude that the decision was not contrary to clearly established federal law. Additionally, while finding the issue a close one, we conclude that Norris’s Eighth Amendment claim would fail even on de novo review, and thus need not determine whether the state appellate court decision involved an unreasonable application of clearly established federal law.  We affirm.

September 23, 2010 in Assessing Graham and its aftermath, Scope of Imprisonment, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

USA Today exposes a "pattern of serious, glaring misconduct" among federal prosecutors

A helpful reader alerted me to this potent and disturbing new piece in USA Today headlined "Prosecutors' conduct can tip justice scales." Here are a few excerpts:

Federal prosecutors are supposed to seek justice, not merely score convictions. But a USA TODAY investigation found that prosecutors repeatedly have violated that duty in courtrooms across the nation. The abuses have put innocent people in prison, set guilty people free and cost taxpayers millions of dollars in legal fees and sanctions.

Judges have warned for decades that misconduct by prosecutors threatens the Constitution's promise of a fair trial. Congress in 1997 enacted a law aimed at ending such abuses.

Yet USA TODAY documented 201 criminal cases in the years that followed in which judges determined that Justice Department prosecutors — the nation's most elite and powerful law enforcement officials — themselves violated laws or ethics rules.

In case after case during that time, judges blasted prosecutors for "flagrant" or "outrageous" misconduct. They caught some prosecutors hiding evidence, found others lying to judges and juries, and said others had broken plea bargains.

Such abuses, intentional or not, doubtless infect no more than a small fraction of the tens of thousands of criminal cases filed in the nation's federal courts each year. But the transgressions USA TODAY identified were so serious that, in each case, judges threw out charges, overturned convictions or rebuked prosecutors for misconduct.  And each has the potential to tarnish the reputation of the prosecutors who do their jobs honorably....

With help from legal experts and former prosecutors, USA TODAY spent six months examining federal prosecutors' work, reviewing legal databases, department records and tens of thousands of pages of court filings. Although the true extent of misconduct by prosecutors will likely never be known, the assessment is the most complete yet of the scope and impact of those violations.

USA TODAY found a pattern of "serious, glaring misconduct," said Pace University law professor Bennett Gershman, an expert on misconduct by prosecutors.  "It's systemic now, and … the system is not able to control this type of behavior. There is no accountability."

He and Alexander Bunin, the chief federal public defender in Albany, N.Y., called the newspaper's findings "the tip of the iceberg" because many more cases are tainted by misconduct than are found. In many cases, misconduct is exposed only because of vigilant scrutiny by defense attorneys and judges.

However frequently it happens, the consequences go to the heart of the justice system's promise of fairness....

In a justice system that prosecutes more than 60,000 people a year, mistakes are inevitable.  But the violations USA TODAY documented go beyond everyday missteps. In the worst cases, say judges, former prosecutors and others, they happen because prosecutors deliberately cut corners to win.

"There are rogue prosecutors, often motivated by personal ambition or partisan reasons," said Thornburgh, who was attorney general under Presidents Reagan and George H.W. Bush. Such people are uncommon, though, he added: "Most former federal prosecutors, like myself, are resentful of actions that bring discredit on the office."

Judges have seen those abuses, too.  "Sometimes, you get inexperienced and unscrupulous assistant U.S. attorneys who don't care about the rules," said U.W. Clemon, the former chief judge in northern Alabama's federal courts.

Wowsa!  I know of more than a few recent high-profile cases in which accusations of federal prosecutorial misconduct were lodged (and generally rejected by lower courts).  It will be interesting to see if this USA Today report prompts efforts by defense attorneys in all such cases to renew assertions of prosecutorial misconduct.  It will also be interesting to see if and how various folks inside the beltway --- ranging from folks inside Main Justice to members of Congress to even Supreme Court Justices --- might respond to this USA Today report.

September 23, 2010 in Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (24) | TrackBack

Notable Third Circuit ruling in CVRA case concerning victim's right to counsel involvement

A helpful reader forwarded me a notable little ruling from the Third Circuit earlier this week concerning whether the Crime Victims Rights Act gives victims a right to have their counsel involved in sentencing proceedings.  The short ruling in In re Zackey, No. 10-3772 (3d Cir. Sept. 22, 2010), can be downloaded below, and here a key portion:

Petitioner David Zackey, victim of a fraudulent scheme perpetrated by Defendant Joseph P. Donahue, seeks a writ of mandamus to enforce his right under the Crime Victims’ Rights Act (“CVRA”), 18 U.S.C. § 3771(d)(3), to be reasonably heard at sentencing. 18 U.S.C. § 3711(a)(4). Under Count Fifteen of the Indictment, Donahue was found guilty of credit card fraud under 18 U.S.C. § 1029(a)(2) for engaging in a course of conduct in which Zackey was victimized. Zackey seeks full restitution as provided by law, including attorneys fees, and an upward departure of the sentencing guidelines.  Zackey contends that the District Court failed to afford him the full scope of his rights available under the CVRA by improperly denying his motion to allow Attorney Jessica Richman to enter an appearance on the record and represent Zackey at sentencing.  Because we find that the District Court did not abuse its discretion, his petition is DENIED.

The CVRA provides that a “crime victim or the crime victim’s lawful representative, and the attorney for the Government” may assert a victim’s rights under the act. 18 U.S.C. § 3771(d)(1). In denying Richman’s motion to enter an appearance, the District Court held that the CVRA “does not require that [a victim] be represented by counsel when being heard, or that victim’s counsel be allowed to speak during the sentencing or any other proceeding in the case,” and it concluded that the assistance of the U.S. Attorney would be “sufficient for determining a proper sentence.”  Significantly, the District Court held that it “recognizes that David Zackey has a right to be heard regarding the defendant’s sentence and any restitution ordered in this case, and nothing in this order precludes the victim from exercising that right.”  Subsequent to the District Court’s order, the government filed Zackey’s motion for restitution and attorneys fees under the name of the United States Attorney’s Office.  Additionally, it has represented that it will seek an upward departure of the sentencing guidelines on account of Donahue’s acts that precipitated the destruction of Zackey’s credit rating and caused him severe emotional trauma. Because the government has not entered into any agreement that would compromise its ability to advocate unequivocally at sentencing for the rights of Donahue’s victims, these measures ensure Zackey’s rights under the CVRA will not be diluted in the absence of individual counsel.

Download Zackey ORDER_3rd_CIr_

The helpful reader who forward this ruling to me refers to Zackey as a "victim Gideon case."  In one sense, this reference seems somewhat apt because it seems like a stretch to expect that victims will always (or even usually) be able to secure all the rights to which they are entitled under the CVRA without the assistance of a lawyer in the courtroom.  But, obviously, the context and legal issues here are distinct: the right to counsel for criminal defendants is set out in the Constitution, and at issue in Gideon was whether the state had to provide counsel to defendants who could not afford them; there is no comparable right to counsel for criminal victims, and at issue in Zackey is not whether the victim could get counsel from the state but whether his retained counsel would be allowed to represent his interests in court.

September 23, 2010 in Procedure and Proof at Sentencing, Victims' Rights At Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

September 22, 2010

"Sexting or Self-Produced Child Pornography?"

The title of this post is part of the title of this new piece by Professor Mary Leary that is available via SSRN. The full title of the article is "Sexting or Self-Produced Child Pornography? The Dialogue Continues – Structured Prosecutorial Discretion within a Multidisciplinary Response," and here is part of the piece's abstract:

The issues of “sexting” and “self-produced child pornography” (SPCP) have captured the attention of the media, courts, and state legislatures.  A debate rages among advocates, policy makers, and reporters about how the law should address this activity.  More than sixteen states have considered special legislation to address the problem and litigation has ensued. Lost in the debate are many realities including the complexity of the problem.  This behavior implicates aspects of child development, child sexuality, child exploitation, teen dating violence, education, and parenting.  While any deliberation about children and how the law should protect children is positive, sensationalism and oversimplification of this complex phenomenon undermine rationale debate.

This article builds on the concept that the solution does not lie in the criminal law.  Rather, it seeks to refocus the debate by suggesting that part of the solution depends on the formation of a comprehensive “smart” response. To accomplish this, society and its institutions (educational, social service, religious, law enforcement, legal, and civic) must come together and form a considered strategy that encourages prevention and a smart response when prevention fails.  This article examines the role of prosecution, if any, in that “smart” response. This article argues against the use of blunt instruments that fail to recognize the complexity of SPCP.  These extremes include “zero tolerance” policies, which in most cases do far more harm than good; decriminalization, which prevents a prosecutor from ever abusing his or her discretion, but also precludes juvenile court intervention even where the conduct is particularly egregious or the youth is in particular need of such; or an ad hoc approach by prosecutors which risks inconsistency, unfairness, and bias.

This article proposes an alternative approach which balances the need for fairness with a need for flexibility: Structured Prosecutorial Discretion within a Multidisciplinary Approach.  It is grounded in the recognition this complex problem covers a broad array of behaviors: from naïvely producing inappropriate images, to coercion, to maliciously distributing images of others virally.  The proposed model calls for prosecutors, together with members of other disciplines, to accept a protocol whereby a variety of proposed factors are considered, in a systematic way, in evaluating cases.  Structured Prosecutorial Discretion is characterized by a rejection of mandatory prosecution, exposure to sex offender registration, or adult criminal court, at one extreme, and decriminalization at the other.  Structured Prosecutorial Discretion would allow juvenile court prosecution to remain as part of a multidisciplinary response for only the most egregious cases (such as vindictive distribution of the images, coercion of the victim, etc.) and only after the implementation of offender-based and offense-based protocols.

Some related "sexting" posts:

September 22, 2010 in Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

Justice Elena Kagan's first significant vote is against a stay of Teresa Lewis's execution

As detailed in major stories from the AP and CNN and other major media sources, late yesterday the US Supreme Court refused to stay the scheduled execution of Teresa Lewis, the condemned woman sent to death row for her role in planning the killings of her husband and stepson in 2002. Lewis is now likely to be the first woman executed in the United States in five years, which is one of the reasons her story and likely execution is garnering lots of attention.

Missing in the coverage I have seen, however, is an interesting gender and new Justice angle on the Supreme Court's work late last night as evidenced by text of the SCOTUS order:

The application for stay of execution of sentence of death presented to The Chief Justice and by him referred to the Court is denied.  The petition for a writ of certiorari is denied.  Justice Ginsburg and Justice Sotomayor would grant the application for stay of execution.

I think it quite interesting and noteworthy that the two Justices who voted to stay Teresa Lewis's execution were both women AND that the newest female Justice, Elena Kagan, broke ranks with her more senior judicial colleagues by deciding against a stay for Teresa Lewis.

Though perhaps too much should not be read into this matter, I think there is a lot of "catnip" for SCOTUS watchers and also for would-be fans/foes of Justice Kagan.  Those concerned (or hoping) that Justice Kagan will be a predictable vote for liberal positions should be pleased (or troubled) that she was not willing to vote for a stay here.  But those hoping (or concerned) that Justice Kagan will be a shrewd junior justice who will build bridges/allies among more conservative Justices should be pleased (or troubled) that Justice Kagan seized an early opportunity to show that she will not always vote for death penalty stays.

A few recent related posts:

September 22, 2010 in Death Penalty Reforms, Race, Class, and Gender, Who Sentences? | Permalink | Comments (17) | TrackBack

Can/should a sentencing judge increase a drug sentence because a defendant is an illegal alien?

The question in the title of this post splits an Eighth Circuit panel today in US v. Loaiza-Sanchez, No. 09-2999 (8th Cir. Sept. 22, 2010) (available here).  Here is how the majority opinion starts:
Hector Loaiza-Sanchez and Jose Luis Juarez-Gonzalez pleaded guilty to conspiring to distribute and possessing with intent to distribute a substantial quantity of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846.  After determining an advisory guidelines sentencing range of 168 to 210 months for each defendant, the district court concluded based upon the sentencing factors in 18 U.S.C. § 3553(a) that a sentence within that range was appropriate.  It then imposed a sentence above the bottom of the range because each defendant committed his offenses while in the country illegally.  Loaiza-Sanchez and Juarez-Gonzalez appeal their sentences of 188 and 200 months in prison, respectively, arguing primarily that “alienage” is an improper sentencing factor.  We affirm.
Here are portions of a dissent from Judge Bright:

In my view, increasing the sentence of a defendant because he is in the country illegally makes little sense when the defendant will be deported after serving his term of imprisonment. As I previously wrote in United States v. Chavez, 230 F.3d 1089, 1092 (8th Cir. 2000) (Bright, J., concurring), long sentences for illegal aliens punish not only the defendant but the American taxpayer. “It would be more sensible to give . . . a stiff, but shorter sentence and then to promptly deport him . . . as an example to other would-be drug dealers.” Id.

Current data on our nation’s prison population and its associated costs evidences this point. Nonviolent offenders constitute over 60% of the prison and jail population.  John Schmitt, Kris Warner & Sarika Gupta, The High Budgetary Cost of Incarceration, Ctr. for Econ. & Policy Research, 1 (June 2010), http://www.cepr.net/documents/publications/incarceration-2010-06.pdf.  Nonviolent drug offenders account for 25% of all offenders behind bars.  Id.  Our country currently spends over $75 billion per year on corrections. Id. at 2.  Reducing the number of nonviolent offenders in our prisons and jails by half would save our nation $16.9 billion per year. Id.  It would save the federal government $2.1 billion per year.  Id. at 11 . In this case, there is no record of violent conduct and no need to heavily punish the defendants or to burden the American taxpayer.

The record here contains no evidence that these defendants came to the United States for the purpose of dealing drugs.  And it simply seems unfair to punish these defendants differently than a United States citizen who commits the same crime.

September 22, 2010 in Drug Offense Sentencing, Offender Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (11) | TrackBack

Fascinating split Fourth Circuit ruling on forced medication to make white-collar offender competent for trial

The Fourth Circuit has a fascinating discussion of both forced medication issues and white-collar sentencing realities today in US v. White, No. 09-7933 (4th Cir. Sept. 22, 2010) (available here).  Here are excerpts from the start and end of the controlling opinion:

Kimberly White ("White"), who suffers from Delusional Disorder, Grandiose Type, was indicted in the Eastern District of North Carolina on six counts of conspiracy, credit card fraud and identity theft.  She filed an unopposed motion for determination of her mental competency to stand trial under 18 U.S.C. § 4241. The examining experts unanimously agreed, and it is undisputed, that White is not competent to stand trial.  When White rebuffed all efforts to treat her disorder, on the government’s motion, the district court held an evidentiary hearing pursuant to Sell v. United States, 539 U.S. 166 (2003), to determine whether the government would be permitted to forcibly medicate White for the purpose of rendering her competent to stand trial. Over White’s objection, the district court granted the government’s motion.  White filed this timely interlocutory appeal, as permitted by Sell....

[W]e are satisfied that the circumstances presented in this case are not sufficiently exceptional to warrant forcible medication. See Sell, 539 U.S. at 180.  White is a non-violent detainee who has served more than the entirety of her likely sentence in pre-trial detention, and in onerous conditions at that. The alleged victims of her crimes, which were solely property crimes, would not likely benefit or be made whole in any way by her prosecution.  She is neither a danger to herself nor to the public, nor will she ever be able to purchase a gun.  She has a rare form of delusional disorder, and there is a dearth of data regarding whether antipsychotic medications, which rarely work on individuals with delusional disorder, would work on a patient like her.

If we authorize the government to forcibly medicate White, an all-too-common, non-violent, long-detained defendant, in a case in which several factors strongly militate against forced medication, it would risk making "routine" the kind of drastic resort to forced medication for restoring competency that the Supreme Court gave no hint of approving in Sell....

Judge Davis wrote this majority opinion, in which Judge Keenan joined. But Judge Keenan wrote a separate concurring opinion, and Judge Niemeyer wrote a dissenting opinion that includes this interesting passage:

[T]he majority relies ... heavily on its assertion that White’s crimes were nonviolent, and therefore the public’s safety is not at risk if she is not prosecuted.  As the majority explains, "Not every serious crime is equally serious.  The nature of White’s crimes lessens the government’s interest in prosecuting her because her alleged crimes were nonviolent offenses." Ante at 29.  The majority’s statement inappropriately assumes, without legal support, that crimes against the person are more serious than crimes against property for applying the Sell factors.  A given crime against property, however, can be serious or even more serious than a given crime against the person.  Enormous harm and distress can be caused by fraud and Ponzi schemes, as can be witnessed on a grand scale in the case of Bernard Madoff in New York.  More importantly, Sell itself refused to recognize such a distinction. See Sell, 539 U.S. at 180.  Moreover, the seriousness of a crime for determining the government’s interest is determined not by judges’ intuitive evaluations but by the maximum sentence established by Congress for the crime.

September 22, 2010 in Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (3) | TrackBack

Latest California efforts to get back into the execution business

Ba-deathchamber0_SFCG1285122537 As detailed in this front-page article in today's San Francisco Chronicle, the state with the nation's largest death row may be getting ever closer to resuming executions after a nearly five-year hiatus prompted by concerns about the state's lethal injection protocol.  The article is headlined "San Quentin gives glimpse of new injection space," and here are excerpts:

Execution is going to be a much more visible and sterile experience at San Quentin State Prison from now on. Prison officials offered the first glimpse of their new lethal injection center Tuesday -- one week ahead of a planned execution few think will actually be carried out -- and the differences between this stark-white place and the old apple-green gas chamber are marked.

The spacious $853,000 center has three brightly lit witness viewing rooms, and each gives a considerably better view than the cramped gas chamber's lone, poorly illuminated viewing room.  In particular, the main observation room for 12 state officials and 17 media witnesses offers four wide, flat windows looking straight into a roomy, open chamber where the lethal injection gurney sits.  This makes every angle of the execution visible -- unlike the truncated, partially blocked sightlines of the old center.

On the north side of this main witness room is a smaller, seven-seat room for survivors and friends of the condemned inmate's victims.  On the south side is an identical room with seven chairs for relatives and friends of the prisoner.  Each of those rooms has two wide windows providing unimpeded views.

But it is unclear whether there will be any witnesses at 12:01 a.m. next Wednesday to see rapist-murderer Albert Greenwood Brown, 56, put to death as planned.  That's because the execution itself is in doubt.

Capital punishment in California has been blocked since 2006 by two state lawsuits contending improper procedures in planning injections and one federal suit contending that lethal injection is a cruel and unusual punishment.  Though an injunction was lifted in one of the state suits Monday and U.S. District Judge Jeremy Fogel of San Jose said Tuesday he will issue a ruling in the federal suit on Friday, there remain several avenues for appeal before an execution can take place.

When he halted all executions in February 2006, Fogel ruled that the state's procedures were so badly flawed, with poorly trained staff working with unclear instructions and little monitoring in a dimly lit chamber, they posed a risk of leaving the dying inmate conscious and in pain at levels that violated the constitutional ban on cruel and unusual punishment.

In response, state officials revised the procedures and built the new death chamber in 2008.  "I don't know how they could simply dismiss the current legal challenges," said Lance Lindsey, executive director of Death Penalty Focus, which opposes capital punishment.  "There is no reason to rush."

Nonetheless, the state attorney general's office issued a death warrant for Brown's execution last month, and the prison has been making plans ever since for its first execution in four years. Brown raped and strangled a 15-year-old Riverside girl in 1980.  "We are fully prepared to carry out an execution on Sept. 29," acting Warden Vincent Cullen said Tuesday. "This facility is fully operational."...

The new injection chamber's views leave little unseen. The main difference is that unlike in the gas chamber, reporters won't be able to directly watch or hear the reactions of witnesses from the victim and inmate rooms to either side.  One major improvement in the new facility is that it has been wired with speakers.  The condemned prisoner will be able to broadcast his last words by a wireless microphone held to his lips by one of the executioners.

The old gas chamber is still ready for use if needed, the warden said.  But with the official method of execution in California being lethal injection, a prisoner would have to make a special request for gas instead.  Like the new injection room, the old gas chamber was entirely built by inmates.

September 22, 2010 in Baze lethal injection case, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (7) | TrackBack

Top House Republican complaining that Obama administration is not fighting drug war hard enough

As detailed in this report from The Hill, which is headlined "Republican: Obama administration fosters use of marijuana," at least one House Republican wants the Obama Administration to keep growing one part of the federal government:

Rep. Lamar Smith (Texas) accused the administration of being too lax in its enforcement of drug laws.  President Obama's drug policies are encouraging increased marijuana use, a top Republican lawmaker charged Tuesday.

Rep. Lamar Smith (Texas), the top Republican member of the House Judiciary Committee who would likely become chairman of the committee under a GOP majority, accused the administration of being too lax in its enforcement of drug laws.  "The administration is clearly sending the message that they don't think it's bad to use marijuana," Smith said on Fox News. "So they're encouraging the use of marijuana.  And that simply is not a good thing to do."

Smith blamed the administration's decision to not enforce federal laws against marijuana dispensaries in states that have legalized the drug for medicinal purposes.  Smith blamed the administration's approach on drug laws for recent statistics showing an increased use of marijuana.

"We ought to be enforcing our drug laws, not backing away from them," said Smith, who also lamented a recent revision of criminal sentencing guidelines that reduced sentencing guidelines for crack-cocaine traffickers.  Proponents of the law in both parties had pushed that reform because sentencing for crack-related drug crimes were much more severe than for similar amounts of cocaine, a disparity which fueled a racial divide in drug sentencing.

As this article highlights, a Republican take-over of the House of Representatives this fall would likely result in Representative Lamar Smith becoming the chair of the House Judiciary Committee.  And Representative Smith has long been a vocal proponent of the war on drugs and an array of other tough-on-crimes measures that have increased the severity and scope of the federal criminal justice system. 

September 22, 2010 in Criminal justice in the Obama Administration, Drug Offense Sentencing, Federal Sentencing Guidelines, New crack statute and the FSA's impact, Who Sentences? | Permalink | Comments (17) | TrackBack

September 21, 2010

"Risk as a Proxy for Race"

The title of this post is the title of this notable new paper by Professor Bernard Harcourt available via SSRN. Here is the abstract:

Today, an increasing chorus argues that risk-assessment instruments are a politically feasible way to resolve our problem of mass incarceration and reduce prison populations. In this essay, I argue against this progressive argument for prediction: using risk-assessment tools to decrease prison populations would unquestionably aggravate the already intolerable racial imbalance in our prison populations and will not address the real source of mass incarceration, namely the admissions process.

Risk has collapsed into prior criminal history, and prior criminal history has become a proxy for race.  This means that using risk-assessment tools, even for progressive ends, is going to significantly aggravate the already unacceptable racial disparities in our criminal justice system.  Instead of turning to prediction, we need to address prison admissions . Recent evidence suggests that our carceral excess was not so much fueled by the length of sentences, as it was by the front end: new admissions.  The real solution to mass incarceration, then, is not to cut short prison terms though prediction, but to reduce admissions to prison.

September 21, 2010 in Data on sentencing, Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing | Permalink | Comments (26) | TrackBack

Georgia execution delayed after failed suicide (DIY?) effort by condemned

I am struggling to figure out how best to portray this (sad? telling? ironic?) AP story out of Georgia, which is headlined "Georgia execution delayed after suicide attempt."  Here are the details:

The Georgia Supreme Court is delaying the execution of a condemned man who attempted suicide hours before he was to be put to death by injection.

The court's order postponed the execution of Brandon Joseph Rhode to give the 31-year-old a chance to file a new challenge after his attorneys said he tried to slit his wrists. Corrections officials rescheduled it for Friday.

Rhode's attorneys say executing him would violate the Constitution's ban on cruel and unusual punishment. Rhode was scheduled to die for the killings of a 37-year-old man and two of his children during a burglary.

I know I should not joke about such serious life-and-death matters, but I cannot help but wonder if Rhode was just trying to make a statement about DIY culture on his (no-longer-) last day of life.

September 21, 2010 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (11) | TrackBack