January 30, 2010
Which of the varied visions of Vrdolyak might emerge victorious?
As detailed in this post yesterday, a split panel of the Seventh Circuit reversed a prominent sentence of five-years' probation (plus 2500 hours of community service) for a prominent former Chicago politician in US v. Vrdolyak, No. 09-1891 (7th Cir. Jan. 29, 2010) (available here). I have just had a chance to read the two lengthy opinions in Vrdolyak, and I am taken (though not surprised) by how differently Vrdolyak and his initial sentencing appear in the different opinions. This full decision is a must-read for sentencing fans just to see how distinctly circuit judges considering an appeal can sometimes view a defendant and a district judge's assessment of that defendant.
As noted before in my prior post, Judge Posner concludes that a "cascade of errors and omissions [by the district court] cannot be dismissed as harmless, and so requires that the defendant be resentenced." Moreover, Judge Posner asserts that there is "no assurance that if let off with a slap on the wrist [Vrdolyak] will not commit a future crime," and he orders resentencing before another judge because of a concern that the original sentencing judge had "an idée fixe that the defendant was not to receive a custodial sentence."
In sharp contrast, Judge Hamilton in dissent says "the record here shows that an experienced judge considered the case thoughtfully and learned information that overcame his initial inclinations ... and imposed a sentence reasonably tailored to fit both the crime and the criminal." In Judge Hamilton's view, the district judge's loss calculation error "was harmless because it did not drive the final sentencing decision under section 3553(a)."
Notably, at the end of this press report about the ruling, Vrdolyak's attorney indicates a plan to seek an en banc review of the panel decision. Because I am not especially familiar with the personalities and politics of the full Seventh Circuit these days, I would love to hear from informed readers whether other circuit judges are more likely to embrace Judge Posner's or Judge Hamilton's views in a case like this. The comments to the prior post have engendered a robust dialogue about the virtues and vices of both Judges Posner and Hamilton, and now I am eager to hear more about whether readers think other Seventh Circuit judges might be inclined to jump into this high-profile sentencing spat.
"Pete Townshend targeted as a 'sex offender' before Super Bowl"The title of this post is the headline of this recent article in the New York Post discussing the controversy that has been brewing ever since the legendary rock band "The Who" was announced as the entertainers for the Super Bowl halftime show. Here are the details from the article:
A child advocacy group has sent out leaflets warning of the arrival of a sex offender to Florida -- legendary guitarist Pete Townshend. The activists are outraged that the 64-year-old rocker will perform with "The Who" at the halftime show during the Super Bowl on Feb. 7 in Miami.
The group is upset because Townshend was busted in 2003 for accessing child porn on the Internet. At the time, Townsend was placed on the sex offender registry for five years after he admitted using his credit card to view the images.
Last month, Protect Our Children lobbied the feds and Florida's attorney general, asking them to reject Townshend's visa. "We acknowledge he was not convicted, but he was on the UK sex offenders list," said Protect Our Children President Kevin Gillick. "In the United States, you're on a sex offenders list for life."
The group put together a flyer that features a photo of a smiling Townshend under the headline "Sex Offender Advisory," according to Gawker.com. The leaflet, which was distributed to some 1,500 homes in the Miami-area this week, warns: "Townshend is a British citizen who was registered as a sex offender in his home country in 2003, for an offense related to child pornography. He will be at large in Miami ... when he arrives to perform at the Super Bowl with his musical group known as 'The Who.' This is a community notification distributed in the interest of public safety."...
The NFL has not commented on the campaign.
Terror trials appear headed out of NYC, but to where...?I was hoping that a fringe benefit of being a visiting professor at Fordham Law School this semester was going to be a chance to head to downtown Manhattan to watch some of the early legal action in the planned criminal trials of Khalid Shaikh Mohammed and four other accused Sept. 11 plotters. However, as explained in this article in today's New York Times, which is headlined "U.S. Drops Plan for a 9/11 Trial in New York City," it looks like these trial are heading out of NYC:
The Obama administration on Friday gave up on its plan to try the Sept. 11 plotters in Lower Manhattan, bowing to almost unanimous pressure from New York officials and business leaders to move the terrorism trial elsewhere. “I think I can acknowledge the obvious,” an administration official said. “We’re considering other options.”
The reversal on whether to try the alleged 9/11 terrorists blocks from the former World Trade Center site seemed to come suddenly this week, after Mayor Michael R. Bloomberg abandoned his strong support for the plan and said the cost and disruption would be too great. But behind the brave face that many New Yorkers had put on for weeks, resistance had been gathering steam....
[I]n a series of presentations to business leaders, local elected officials and community representatives of Chinatown, Police Commissioner Raymond W. Kelly laid out his plan for securing the trial: blanketing a swath of Lower Manhattan with police checkpoints, vehicle searches, rooftop snipers and canine patrols. “They were not received well,” said one city official.
And on Tuesday, in a meeting Mr. Bloomberg had with at least two dozen federal judges on the eighth floor of their Manhattan courthouse, one judge raised the question of security. The mayor, according to several people present, said he was sure the courthouse could be made safe, but that it would be costly and difficult.
The next day, the mayor, who back in November had hailed the idea of trying Khalid Shaikh Mohammed and four other accused Sept. 11 plotters in the heart of downtown Manhattan, made clear he’d changed his mind.
The Obama administration official said the decision to back out of plans for a New York trial had broad support but had not yet been made public.
I wonder if it would be legally and administratively possible to create a viable make-shift federal court facility in the middle of Pennsylvania where United Flight 93 crashed. I personally think it would be legally appropriate and symbolically fitting for those involved in the 9/11 attack to be tried (and, in my hope, convicted and sentenced to die) around the location of where Flight 93 crashed.
"Reformers Hope High Court Decision Will Kill Judicial Elections"The title of this post is the headline of this interesting new article by Tony Mauro in The National Law Journal. The sub-head of this piece is "The 'Citizens United' opinion, they reason, may drive more money into judicial races and turn off the public," and here is how it gets started:
For years now, judicial reform groups have more or less resigned themselves to the reality that the public likes to elect its state judges and will fight any effort to appoint them instead.I suspect that folks who litigate criminal cases and work on sentencing issues in the states know the import and impact of the fact that "more than 80 percent of state judges have to win a political election to gain or retain their seats." Consequently, there could be some significant sentencing echoes if Citizens United really does prompt some changes in some state judicial selection procedures.
The U.S. Supreme Court's Jan. 21 decision in Citizens United v. FEC may have altered that sober truth -- or at least has given reformers a glimmer of hope that it might. By supersizing possible corporate domination of judicial elections, the thinking goes, the Supreme Court's decision may finally make the public see how unseemly the elections are -- and move toward merit-based selection as an alternative.
"There is a silver lining to the decision," said Ohio Chief Justice Thomas Moyer, who has taken the lead in seeking change in Ohio's elective system for judges. "For those of us who have been trying to impress upon the public the deleterious effects of money in these elections, it helps us make the point that we need to get the money out."
"The time is now for change," said Rebecca Kourlis, former Colorado Supreme Court justice and executive director of the Institute for the Advancement of the American Legal System at the University of Denver. "I believe we can revitalize the merit-selection movement."
Kourlis spoke at a Georgetown University Law Center conference on judicial elections convened on Jan. 26 by retired Justice Sandra Day O'Connor. In retirement, working with Kourlis and others, O'Connor has become a merit-selection evangelist who energizes the movement by her sheer presence. O'Connor's calendar is dotted with meetings with local good-government groups across the country aimed at jump-starting the effort to change the way state judges are chosen. Currently, O'Connor said, more than 80 percent of state judges have to win a political election to gain or retain their seats.
At the conference, O'Connor said that Citizens United, in tandem with last year's Caperton v. A.T. Massey Coal Co., has focused public attention on the "mutually assured destruction" of the "funding arms race" that has made multimillion-dollar judicial campaigns commonplace. In the Caperton ruling, the high court said that, in some instances, a corporate campaign expenditure in a judicial campaign can be so large that due process requires a judge to recuse in pending cases involving the company.
"These two cases should be a warning to states that still choose judges by popular elections," said O'Connor. "These states should at least pause and think whether some change is needed. The time is now for opponents of merit selection to do a little soul-searching." O'Connor, who retired from the high court in 2006, declined to comment specifically on Citizens United, but made it clear she was unhappy. "Gosh, I step away for a couple of years, and there's no telling what's going to happen."
January 29, 2010
Split Seventh Circuit rejects probation sentence for Chicago alderman's fraud
This post from last month noted a notable Seventh Circuit argument in which Judge Richard Posner extensively questioned the lenient sentence given to former Chicago Alderman Ed Vrdolyak. As detailed in this local story, which is headlined "Vrdolyak's probation-only sentence overturned," the Seventh Circuit has now reversed that sentence:
Former Chicago Ald. Ed Vrdolyak’s probation-only sentence for fraud has been overturned by an appellate panel, meaning he could face prison time when he is re-sentenced.
Vrdolyak had pleaded guilty to charges stemming from the $15 million sale of a Gold Coast building belonging to the former Chicago Medical School, now called the Rosalind Franklin University of Medicine and Science. Vrdolyak schemed with school board member Stuart Levine to split a $1.5 million kickback from the sale of the building to Smithfield Properties Development.
U.S. District Judge Milton Shadur sentenced Vrdolyak to probation last year — leading to headlines of “Fast Eddie Walks” that played off the former alderman’s nickname. But the sentence was kicked back — and assigned to a new judge — today when the 7th U.S. Circuit Court of Appeals ruled 2-1 to reverse Shadur’s sentence. Federal prosecutors had asked the appeals court to overturn the light sentence.
Judge Posner wrote the opinion for the majority in US v. Vrdolyak, No. 09-1891 (7th Cir. Jan. 29, 2010) (available here), wherein he concludes that a "cascade of errors and omissions that we have identified cannot be dismissed as harmless, and so requires that the defendant be resentenced."
Notably, Judge Hamilton writes a lengthy dissent, which starts this way: "I agree that the district court erred in the guideline loss calculation, but I respectfully dissent because that error was harmless."
Abortion doctor killer convicted (and subject to mandatory life WITH parole sentence) in Kansas
As detailed in this new Wall Street Journal report, a jury in Topeka, Kansas "took less than 40 minutes Friday to find Scott Roeder guilty of first-degree murder for shooting abortion provider George Tiller in a church here last May." Here is how the WSJpiece describes the sentencing consequences: "The murder conviction carries a mandatory sentence of life in prison, though under Kansas law, parole is possible [in 25 years, I believe]. Mr. Roeder, 51 years old, will be sentenced in March."
Especially because the nature of this kind of crime can perhaps distort usual sentencing politics, I wonder if folks that are usually vocal opponents of both the death penalty and mandatory minimum sentencing provisions are at all troubled that Roeder is not eligible for the death penalty or that he is subject to a mandatory minimum sentence here. Conversely, I wonder if folks who are usually vocal proponents of both the death penalty and mandatory life without parole sentences for first-degree murderers are at all troubled that Roeder is not going to be facing either of these sentences for his crime.
On a related front, this Newsweek blog post notes that abortion doctor killers have generally gotten harsher sentences in other jurisdictions:
Harsh punishment for violence against abortion doctors has not proven a deterrent in preventing such crimes. Michael Griffin was sentenced to life in prison after murdering abortion provider David Gunn in 1993. The next abortion-provider murderer, Paul J. Hill, who killed a Florida provider in 1994, received lethal injection. But that did not prevent a wave of anti-abortion violence in the 1990s that left three clinic workers and one abortion provider dead. Roeder acknowledged that he had begun thinking about killing Tiller as early as 1993, and in great detail — he told the jury how he considered cutting off Tiller's hands with a sword or tracking him down at his house. The repeated life or death sentences of those who have murdered abortion providers apparently provided no deterrent. As long as there are extreme anti-abortion groups who praise Roeder as an "American hero," abortion providers will have to continue to see the threat of violence a part of the profession they chose.
Of course, astute punishment theorists should be quick to respond to this blog post by noting that Roeder crime alone does not definitively show that "[h]arsh punishment for violence against abortion doctors has not proven a deterrent in preventing such crimes." For all we know, absent the tough punishments given to Gunn and Hill, perhaps there would have been many more killings of abortion doctors. In other words, the fact that Roeder was not deterred does not necessarily mean that others weren't.
Is it bad for sentencing jurisprudence that women are still badly under-represented on the bench?
The question in the title of this post is prompted by the report in this post at The BLT, which details the following statistics (that I find quite depressing):
Women currently make up 22% of all federal judges, a new study has found, and 26% of state-level judges.
The study by the University at Albany-SUNY's Center for Women in Government and Civil Society found that only two states — New Jersey and Connecticut — had achieved a "critical mass" of 33% women among the state's federal judgeships. As for state judges, eight states have hit the one-third women mark, but 13 are below 20%.
The 33% threshold is “important because it is the point where women become a critical mass and where their number is large enough to induce change in the normative conception of leadership,” said center director Dina Refki in a statement.
Women’s share of the federal bench is at 10% or less in eight states — and nearly non-existent in Montana and New Hampshire.
In this post a few months ago, I asked "Do women make better sentencing judges?," and this new study certainly justifies continued discussion of that question. But, as the title of this post is meant to explore, I would also like to hear thought from readers about whether they think having more women on appeals courts might impact sentencing jurisprudence for the better.
"California court wants proof on confining sex predators"The title of this post is the headline of this article in the San Diego Union-Tribune discussing this interesting new ruling in People v. McKee from the California Supreme Court concerning the state's sex offender civil commitment statute. Here is the report's account of the decision:
The California Supreme Court ruled Thursday that the state might not be able to indefinitely hold sexually violent predators in jail, as authorized under a 2006 proposition approved by voters.
In a 5-2 decision in a case from San Diego, the court said state prosecutors had to provide more evidence that treating sexually violent predators differently than others who are also held under civil commitment rules — such as mentally disordered offenders — does not violate the equal protection guarantees of the constitution They sent the case back to San Diego for such a hearing.
The majority opinion in McKee gets started this way:
Proposition 83, passed by the voters in November of 2006, modified the terms by which sexually violent predators (SVP's) can be released from civil commitment under the Sexually Violent Predators Act (SVP Act or Act; Welf. & Inst. Code, § 6600 et seq.). In essence, it changes the commitment from a two-year term, renewable only if the People prove to a jury beyond a reasonable doubt that the individual still meets the definition of an SVP, to an indefinite commitment from which the individual can be released if he proves by a preponderance of the evidence that he no longer is an SVP.
Defendant, who is subject to indeterminate commitment pursuant to Proposition 83, challenges the law on several constitutional grounds: that it violates the due process and equal protection clauses of the Fourteenth Amendment of the United States Constitution and that it violates the ex post facto clause, article I, section 10 of the United States Constitution. Like the Court of Appeal, we conclude that defendant's due process and ex post facto challenges are without merit. As for the equal protection challenge, we conclude that the state has not yet carried its burden of demonstrating why SVP's, but not any other ex-felons subject to civil commitment, such as mentally disordered offenders, are subject to indefinite commitment. As explained below, we remand to the trial court to permit the People the opportunity to justify the differential treatment in accord with established equal protection principles. (See In re Moye (1978) 22 Cal.3d 457.)
January 28, 2010
Ninth Circuit upholds long white-collar sentences while covering of lots of notable issues
Though white-collar offenders do not always prevail with their sentencing claims, the often do at least get courts to review and discuss their claims at some length. This reality is on full display today in the Ninth Circuit's panel ruling in US v. Treadwell, No. 08-50562 (9th Cir. Jan. 27, 2010) (available here), in which the panel covers lots of old and new post-Bookersentencing issues in the course of affirming a set of (relatively) long white-collar sentences for defendants involved in "a massive four-year Ponzi scheme in which more than 1,700 investors across the United States lost over $40 million."
I will need some time to consume the full Treadwellopinion to figure out if any significant new ground is broken in this opinion. It is clear for a quick scan, however, that everyone doing sentencing work in the Ninth Circuit and everyone working on Ponzi cases will want to be sure to check out this new opinion.
Fourth Circuit adopts plain-error review for unpreserved error of inadequate explanationJoining most other circuit that have considered the question, the Fourth Circuit today in US v. Lyon, No. 08-5125 (4th Cir. Jan. 27, 2010) (available here), has formally adopted plain-error review for unpreserved procedural explanation errors after Booker. Here is how the Lynn opinion starts:
In each of these cases, an appellant contends that the sentencing court committed reversible procedural error by failing to consider the required sentencing factors and offer an adequate explanation for the sentence imposed. When a party lodges such an objection in the sentencing court, we review for abuse of discretion. We consolidated these cases on appeal to resolve what standard of appellate review applies when a party lodges such an objection for the first time on appeal. For the reasons that follow, we conclude that we subject such unpreserved objections only to plain-error review.
Facebook enhancement for drunk driver provides notable example of social-media sentencingThis local sentencing story from the Buffalo News, which is headlined "Drunk driver gets into more trouble after posting Facebook photo," provides a new and notable example of what might be called "social-media sentencing." Here are the details:
Ashley M. Sullivan is in Niagara County Jail, and Facebook may be to blame as much as the car crash that killed a Niagara Falls man.
Sullivan, 17, of Linden Avenue, North Tonawanda, was sentenced Wednesday afternoon to six months in the County Jail and five years' probation for crashing her car while drunk and killing her boyfriend May 30 on Sweeney Street in North Tonawanda. She pleaded guilty Nov. 18 to criminally negligent homicide and misdemeanor driving while intoxicated.
The Buffalo News has learned that Sullivan went to Florida a month after the crash and posted a photo on her Facebook Web page captioned, "Drunk in Florida."
"I'm troubled by your conduct since the crash," County Judge Matthew J. Murphy III told Sullivan, "and that's the reason for the jail sentence." Murphy also refused to grant Sullivan youthful offender status for the same reason. "I don't believe the defendant has earned it," the judge said.
Murphy, in reading the terms of probation, went out of his way to emphasize to Sullivan that she isn't allowed to drink for the next five years. "You're 17 years old. You're not old enough to drink," Murphy said.
When defense attorney Glenn Murray said in court, "This young woman is remorseful," someone laughed among a crowd of more than two dozen of the victim's friends and relatives, drawing a reprimand from the judge....
Murphy, who could have sentenced Sullivan to as long as four years in state prison, said his decision was difficult "because of the defendant's extreme youth and her past history." He ordered that after Sullivan gets out of jail, she will be under electronic home monitoring for a year. He also revoked her driver's license.
"My client failed to consider the consequences, the tragic consequences," Murray said. "This offender understands the tragedy she is responsible for. She will never forgive herself." He said Sullivan had decided not to speak, although when Murphy asked her, Sullivan managed to say, "I'm very sorry," before breaking down in tears.
It is not at all unusual, though it can sometimes be controversial, for sentencing judges to decide to increase a defendant's based on post-offense or even post-conviction conduct. Nevertheless, the impact here of a social-media message on Facebook adds an extra layer to this common sentencing issue. Not only does the sentencing judge here learn that the underage defendant was drinking heavily again not long after having just killed her boyfriend via drinking and driving, but he also discovers that she does not have the good sense not to brag to friends about her persistent misbehavior. For these and other reasons, I think Sullivan should consider herself very lucky to have only gotten a six month jail term here.
Second Circuit addresses constitutional claims in challenge to NY felon disenfranchisement
The Second Circuit has already addressed and rejected, en banc, a challenge to New York's felon disenfranchisement law based on federal statutory law. Today, through this new panel opinion in the case now called Hayden v. Paterson, the Circuit addresses (and mostly rejects) constitutional challenges to this New York state law. Here is a summary of the ruling from the opinion itself:
Plaintiffs-Appellants appeal from the portions of a final order and judgment of the United States District Court for the Southern District of New York (Lawrence M. McKenna, Judge) entered on June 14 and 16, 2004, respectively, that dismissed plaintiffs’ claims for relief under the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and the Fifteenth Amendment of the United States Constitution. Because plaintiffs do not state a plausible claim of intentional discrimination and they do not state a plausible claim that New York Election Law § 5-106(2) violates the Equal Protection Clause of the Fourteenth Amendment, we affirm the District Court’s grant of judgment on the pleadings to defendants. We do, however, remand to the District Court to allow plaintiffs to seek leave to amend their deficient complaint as to their intentional discrimination claim. AFFIRMED and REMANDED for further proceedings consistent with this opinion.
Because I am not really an expert in this area, I cannot quickly assess whether this new Hayden ruling is especially noteworthy. But, in light of the holding, this ruling is clearly not as significant as the Ninth Circuit panel ruling earlier this month that Washington state's disenfranchisement of felons violates the federal Voting Rights Act (discussed here).
New report on the role of medical boards regulating doctor involvement in executionsA helpful reader alerted me to this new study of state ethical codes which concludes that doctors in most states need not fear professional discipline for participating in executions. Here is the study's abstract:
The recent increase in calls for physician participation in lethal injection executions is likely to place a spotlight on state medical boards, the only entities empowered to discipline doctors for ethical violations. This article begins by recounting the history of physician participation in lethal injection executions, as well as the opposition of most medical professional organizations to the practice. The current state of the law suggests, however, that the role of state medical boards is quite circumscribed, at least in the majority of states with death penalty statutes that appear to contemplate some level of physician participation in executions. In order to further determine the legality of medical board action, a comprehensive study was conducted of the statutes and regulations governing state medical boards in all 50 states. The study reveals that only a handful of states – and only seven death-penalty states – explicitly incorporate the AMA’s ethical guidelines into their own state ethical codes. The study concludes by suggesting that, where doctors who participate in executions are doing so in order to relieve pain and suffering, it is not clear that a state medical board should intervene even in the rare instance when it would be legally possible to do so.
Some related posts on doctors and executions:
Can and should religious considerations influence bail decisions?
The question in the title of this post is prompted by this interesting recent story over at a Wall Street Journal blog that is headlined "Rabbis Request Bail For Rubashkin." Here are the basics:
While these rabbis are basically suggesting that religious considerations should provide a basis for prosecutors (and presumably judges) to be willing to allow Rubashkin to be out on pre-sentencing bail, I cannot help but wonder if religious considerations might have been a factor in the initial decisions to be unwilling to allow Rubashkin to be out on pre-sentencing bail. There are, I believe, a number of notable cases in which Jewish offenders have fled to Israel and resisted extradition in the past.
Seven rabbis traveled to Washington, D.C., Tuesday seeking a remedy for what they say is overly harsh and unjust treatment of Sholom Rubashkin, the former Agriprocessors executive convicted of fraud at the kosher meat packing plant, which filed for bankruptcy protection in 2008.
The rabbis, who lead such Orthodox Jewish membership organizations as the National Committee for the Furtherance of Jewish Education and the Rabbinical Alliance of America, are demanding the release on bail of Rubashkin as he awaits sentencing on the 86 counts of financial fraud that a federal jury found him guilty of last fall. The 8th U.S. Circuit Court of Appeals denied Rubashkin’s request for bail earlier this month, according to The Gazette of Cedar Rapids, Iowa, but Rubashkin recently appealed their decision.
Speaking at a press conference at the National Press Club Tuesday, Rabbi Chaim Dovid Zwiebel of Agudath Israel of America said the rabbis weren’t there to discuss Rubashkin’s actual and supposed wrongdoings. (In addition to the financial fraud, Rubashkin also faced charges that he violated federal immigration laws at the Iowa plant where 389 illegal immigrant workers were notoriously arrested in a federal raid in May 2008. Prosecutors dropped the 72 charges after Rubashkin’s first trial.)
Rather, Zwiebel said they sought to address “a humanitarian issue” — that Rubashkin, himself an Orthodox Jew, has been unable to fully practice his faith in prison, and that prosecutors have unjustly pushed to keep him behind bars until he gets his prison sentence. “We believe local federal prosecutors have been extraordinarily inflexible and harsh” in their urging the courts to reject bail, Zwiebel said.
The rabbis denied allegations that Rubashkin would be a flight risk, arguing that his and his family’s travel documents have been surrendered and that Rubashkin fully complied with the terms of his bail before his trial began. Zwiebel pointed out the “heart-rendering aspect” of the case, that a father of 10 may not be able to spend time with his wife and kids before beginning a long prison term. (Federal prosecutors are recommending between 21 and 27 years behind bars.)
Is it uniquely wrong to deny bail partially on religious grounds, but justified to grant bail partially on these grounds? Or should the issues work as one-way rachet in the other direction against bail? And are any of these questions of constitutional dimension in light of the First Amendment's religion clauses?
UPDATE: Eugene Volokh has this characteristically thoughtful discussion of these matters in this new post:
It seems to me that it’s improper, and unconstitutional, to give people a break when it comes to bail because of their religious practices. I’m sure that being in jail does interfere with people’s religious practices. There are minimum requirements of religious accommodation for inmates (for instance, some sort of kosher or halal food would generally have to be available to Jewish or Muslim inmates), but I’m sure that the inmates can’t have the same sort of religious life that they can have outside; and jail regulations aimed at legitimate security purposes may even end up forcing the inmates to violate some of their felt religious obligations. The story isn’t clear on exactly what the burden on Rubashkin’s religious practice is, but I can easily believe that there is such a burden.
But it seems to me that the question of which defrauders — or robbers or drunk drivers or whoever else — stay in jail and which go free, even temporarily, can’t be decided in a way that gives the religiously observant a special break (or for that matter that gives atheists or agnostics a special break). Whatever the permissible scope of special accommodations for religious observers (for a bit more on this, see here), I don’t think such accommodations can extend to granting bail based on a person’s felt religious obligations and the difficulty of continuing to comply with them in jail.
January 27, 2010
Another lawyer Ponzi schemer now looking at a long federal sentenceAs detailed in Bloomberg News report, another infamous Ponzi schemer has now formally entered a guilty plea in federal court, and he can now only hope he gets a sentence more in line with similar Ponzi player/lawyer Marc Dreier (who got 20 years), rather than something similar to the 150 years given to the modern Ponzi king Bernie Maddoff. Here are the basics:
Former South Florida lawyer Scott Rothstein pleaded guilty to using his law firm as a criminal enterprise to run a $1.2 billion Ponzi scheme that funded a lavish lifestyle, bankrolled his firm and bought political influence.
Rothstein, 47, admitted guilt today to two counts of wire fraud and three conspiracy charges before U.S. District Judge James Cohn in Fort Lauderdale, Florida. He faces as much as 100 years in prison at a May 6 sentencing. “My concern here is with innocent victims whose money is being held up,” Cohn today told prosecutors, whom he directed to file papers explaining how they’ll recover investors’ money.
Rothstein sold investors discounted stakes in fraudulent settlements of sexual-harassment and whistleblower lawsuits, which ranged from hundreds of thousands to millions of dollars, he admitted today in a document accompanying his guilty plea. He confessed he told investors they would collect the full proceeds when the cases settled. “Defendant Rothstein was aware that no such clients or requests for business financing actually existed,” according to the Jan. 25 court papers, which were made public today....
Rothstein used the money from the scheme to keep afloat his firm, pay employees, rent office space and buy equipment, he admitted. He and others instructed law firm employees to contribute to the campaigns of local, state and federal politicians in a way that evaded limits on such donations and disguised the true sources of the money, prosecutors alleged. Many of the donations were returned after the accusations against Rothstein became public....
Rothstein used proceeds from his crimes to buy 18 pieces of property in Florida; two in Narragansett, Rhode Island; and three residences in New York City, prosecutors have said in court papers. He had a white Lamborghini, a red Ferrari Spider, 304 pieces of jewelry and a collection of sports memorabilia.
As always, readers are encouraged to make any and all early sentencing recommendations or predictions.
Fourth Circuit panels spliting over Atkins claims from VirginiaThe Fourth Circuit has a pair of lengthy rulings today involving two different panels providing two different discussions of two Virginia death row defendants' claims that the Supreme Court's Atkins ruling precludes their executions:
Winston v. Kelly, No. 09-2 (4th Cir. Jan. 27, 2010) (available here)
Walker v. Kelly, No. 06-23 (4th Cir. Jan. 27, 2010) (available here)
"California launches plan to cut prison population"The title of this post is the headline of this recent Los Angeles Times article which provides an update on the latest state of the debate over prison populations in The Golden State. Here are the basics:
State prison authorities Monday began reducing the number of parole violators sent back behind bars and offering inmates more opportunity to shorten their sentences, as part of a plan to decrease the prison population by 6,500 inmates over the next year.
Low-risk offenders, including those convicted of nonviolent crimes, will not have regular supervision by a parole agent. And they will no longer be returned to prison for technical violations such as alcohol use, missed drug tests or failure to notify the state of an address change.
Parole agents will reduce the number of inmates they supervise to focus on those the state deems to be at highest risk of committing more crimes, such as people who have committed sexual crimes and other violent offenses. Each agent's caseload will fall from 70 parolees to 48.
In addition, prisoners can shave time off their sentences by working on firefighting crews or by obtaining a high school diploma or trade-school certificate or by completing drug or alcohol rehabilitation programs.
Over time, prisons chief Matthew Cate said, the rules will lower the rate at which parolees are returned to state lockups, reduce crime overall and "save, over the course of a full year, a half a billion dollars for California taxpayers." The state will thus address its prison overcrowding problem while "significantly increasing public safety," said Cate, who heads the California Department of Corrections and Rehabilitation.
Some law-enforcement officials, state legislators and crime-victim advocates took a different view, predicting a spike in crime in California as more people leave prison earlier with less supervision. LAPD Lt. Brian Johnson, a director of the Los Angeles Police Protective League, said the state "will start to release numerous dangerous felons into our community."...
The changes are occurring as the state has slashed budgets for education and rehabilitation programs in prisons. "These people are not rehabilitated, and yet we're going to open the door and let them out?" said Harriet Salerno, president of the group Crime Victims, speaking at a Capitol news conference that was also attended by representatives of Los Angeles police officers and Los Angeles County sheriffs' deputies.
Sheriff Lee Baca said he is "very concerned" about the changes. He has ordered his deputies to meet with low-level offenders released from prison and tell them about community services such as mental health and drug rehabilitation programs, said Sheriff's Lt. Wayne Bilowit.
Assemblyman Ted Lieu (D-Torrance), a former prosecutor running for state attorney general, introduced a bill Monday that would give local law enforcement officials a greater role in blocking the release of inmates they deem to be a risk to the public.
On a related front, the Los Angeles Times also has this additional blog posting reporting that "Gov. Arnold Schwarzenegger floated a different approach to trimming down California’s bloated prison budget on Monday: pay Mexico to build new prisons and ship off California’s incarcerated illegal immigrants south of the border. " Here's more:
“We can do so much better in the prison system alone if we can go and take inmates, for instance the 20,000 inmates that are illegal immigrants that are here, and get them to Mexico,” Schwarzenegger said during a question-and answer session at the Sacramento Press Club. “Think about it.” It’s cheaper to build prisons in Mexico, Schwarzenegger reasoned, and it’s cheaper to staff them there to boot.
“We pay them to build the prison down in Mexico,” the governor said. “...Half the costs to build the prisons and half the costs to run the prisons. That is money -- $1 billion right there -- that could go into higher education.”
The idea is not a new one. Jim Nielsen, a former head of the state’s parole board and now a state assemblyman, promoted the idea in the mid-1990s. It never happened. The governor’s office said no specific prisoners-in-Mexico plan is in the works -- just yet. “There’s no proposal,” said Schwarzenegger spokesman Aaron McLear. “He was mentioning a creative solution we should talk about.”
So, in service to the Governor of California, let's start talking about the pros and cons of the creative idea of the US funding the building of prisons in Mexico and then sending US inmates that are illegal immigrants to serve their time south of the border.
Not-quite-random mid-day blogger/tech comment
It has taken me only a few minutes to decide that I now want and need an iPad, though I am fearful (or perhaps hopeful) that the new Apple gizmo will be much better for reading blogs than for writing them.
Also, I am also already thinking about whether an iPad and other forthcoming like technologies might alter the resource and technology universe for lawyers, law professors and law students.
I have never tried to do any kind of legal research or legal writing on my Droid smartphone, and I suspect that there are relatively few smartphone apps that are truly helpful to the average lawyer or law student. In addition, I have been disappointed by the potential for my first-generation Kindle to be a means or medium for me to do professional reading of cases and other legal materials. The Apple folks are touting the iPad as having some of the best aspects of modern e-readers and modern netbooks. If this is true, I can readily imagine the possibility of an iPad with applications that are especially lawyer-friendly and lawyer-useful.
Thoughts, dear readers? Is anyone (other than me) eager to read this blog on an iPad?
Thorough and thoughtful district court defense of federal child porn guidelines
As readers of this blog know, in recent years a federal district judges have written thorough and thoughtful sentencing opinions assailing the long prison sentences recommended the the current federal sentencing guidelines for child porn downloading offenses. Yet, while these often-forceful decisions suggest that it is hard to justify within-guideline sentences in many downloading cases, the fact remains that roughly half or more of all child porn sentences as still imposed within the ranges set out in the federal guidelines. Thus, I am pleased to have learned of a new thorough and thoughtful opinion from a district judge in the Northern District of Ohio that provides thorough and thoughtful defense of the federal child porn guidelines.
The opinion in US v. Cunningham, No. 1:09CR154 (N.D. Ohio Jan. 26, 2010) (available for download below) is authored by Judge John Adams, and I was feeling especially patriotic and proud when I read its engaging explanation for what a within-guideline sentence of 121 months was justified in this case. The full opinion is an absolute must-read for everyone working in this area, and I found this passage with mini-slam by Judge Adams on his colleagues especially noteworthy:
In an effort to more fairly judge the nature and circumstances of this offense, the Court personally reviewed all of the images and videos.
The Court made its request to view the images shortly before the first sentencing hearing in this matter. At that time, Agent Hagan expressed surprise that the Court wished to review the images in their entirety. Agent Hagan indicated to the Court that she had been the affiant in more than 100 child pornography investigations and, absent a matter going forward to trial, a judge had never requested to view the photographs at issue. While only a minor sampling, this revelation was shocking to the Court. As detailed above, the agents handling these matters are able to aptly describe the contents of each image. Those descriptions, however, are little more than words on paper. Absent examining the images, one cannot get a true sense of the depravity that they depict. Thus, the Court implores any reviewing Court to personally examine the images at issue and not simply rely on a written description of their contents. The Court acknowledges that the review of such images is, to say the least, uncomfortable. There are some images that are haunting, and they cannot be unseen. However, any uneasiness felt by the individual reviewing the image pales in comparison to the harm caused by the image being created in the first place.
Notably, in the one case in which I testified in court as an expert witness on these matters, I did witness the sentencing judge view (in open court on a laptop only she could see) some of the child porn images for which the defendant had been convicted of possessing. Thus, I know that at least some district judges other than Judge Adams will look at the criminal images before sentencing these child porn offenders. But it seems that this practice may be the exception rather than the rule.
Kansas legislature considering bill for PTSD-based sentence reductions for veteransAs noted previously on this blog, there have been some notable recent examples of judges reducing a sentence based on the hardships a defendant previously suffered as a result of military service. Now, as detailed in this local article from Kansas, this concept is getting some legislative attention:
Judges would be able to reduce sentences for defendants who are combat veterans and have post-traumatic stress disorder, under a bill being considered by the Kansas Legislature.
The measure is being pushed by state Rep. Tom Sloan, R-Lawrence, who said his aim is to assist returning veterans from Iraq and Afghanistan who become entangled in the criminal justice system to get the help they may need if they are suffering from PTSD. “They are returning from very stressful situations,” Sloan said. “If they get in trouble, maybe they don’t need to go to prison, but they need to get services.”...
The bill would give a judge the discretion to allow a departure from sentencing guidelines if the defendant has been diagnosed with PTSD and served in combat zones.
Committee Chairwoman Pat Colloton, R-Leawood, said several states are trying ways to connect returning veterans who run afoul of the law with needed health and social services. She said the proposals aren’t intended to excuse unlawful behavior but to get at the root of the problem and try to help
Sloan said he got the idea for the bill after discussions with Maj. Gen. Tod Bunting, the Kansas adjutant general. Recent reports have indicated that as many 300,000 veterans of the Iraq and Afghanistan wars, which is nearly 20 percent of returning forces, are likely to suffer PTSD or major depression.
Some recent related posts:
- "Judges Consider New Factor at Sentencing: Military Service"
- "Judge suggests more sentencing options for war veterans"
- Can downloading of child porn be blamed on post-traumatic stress disorder?
- Prior military service as a sentencing mitigator gets a big boost from SCOTUS
- Should prior military service reduce a sentence?
- "Purple Hearts On Death Row: War Damaged Vets Should Not Be Executed By the State"
January 26, 2010
How could (or should) proposed spending freeze impact federal crime and punishment?As detailed in this New York Times article, which is headlined "Obama to Seek Spending Freeze to Trim Deficits," in his upcoming State of the Union Address "President Obama will call for a three-year freeze in spending on many domestic programs, and for increases no greater than inflation after that, an initiative intended to signal his seriousness about cutting the budget deficit." Here are more details:
The freeze would cover the agencies and programs for which Congress allocates specific budgets each year, including air traffic control, farm subsidies, education, nutrition and national parks.
But it would exempt security-related budgets for the Pentagon, foreign aid, the Veterans Administration and homeland security, as well as the entitlement programs that make up the biggest and fastest-growing part of the federal budget: Medicare, Medicaid and Social Security.
My first instinct is that the Department of Justice and other agencies involved in traditional federal law enforcement activities — other than terror-related homeland security — would be among the agencies and programs subject to a freeze rather than an exemption. I likewise assume that the federal judiciary and its various departments — ranging from the US Sentencing Commission to federal probation offices to federal defender offices — will also be subject to this proposed freeze.
I know many persons working in DOJ and the federal judiciary likely already feel their budgets are (too?) lean. I suspect that this proposed spending freeze, if it becomes a reality, could significantly alter who is working on federal crime and punishment issues and how they do their work. But, as the title of this post asks, it is not thereafter obvious if and how such budget-driven changes would impact federal crime and punishment. Perhaps fewer low-level immigration and gun and drug prosecutions? Perhaps greater emphasis on economic crimes and punishments? Perhaps some more serious discussion of marijuana legalization?
Judge Weinstein attacks Wall Street while sentencing with aid from a judicial sentencing panelA new sentencing story out of the Eastern District of New York, which is described in this New York Law Journal piece headlined "In Securities Dealer's Sentencing, Judge Blasts 'Corrupt' Wall Street Culture," includes a gut of exciting themes for a law geek like me. Here are excerpts:
In sentencing former Credit Suisse securities dealer Eric Butler to five years in prison, Eastern District of New York Judge Jack B. Weinstein has condemned "the pernicious and pervasive culture of corruption" on Wall Street.
"The blame for this condition is shared not only by individual defendants like Butler, but also by the institutions that employ them, those who carelessly invest, and those who fail to regulate," Weinstein wrote in the Statement of Reasons for the sentencing he issued on Friday in United States v. Butler, 08-cr-370.
"Supervision is seriously negligent; greed and short-term gain are so enormous that fraud and arrogant disregard of others' rights and of ethics almost encourage criminal activities such as defendant's," he said. In addition to the five-year sentence and three years of supervised release, Weinstein fined Butler $5 million, about $1 million more than Butler's estimated assets.
United States v. Butlermarked perhaps the first major criminal action stemming directly from the subprime crisis. Following a three-week trial, Butler was convicted in August of securities fraud, conspiracy to commit securities fraud and conspiracy to commit wire fraud for his role in a scheme to trick investors into purchasing high-risk and high-commission subprime securities....
Judge Weinstein dedicated a significant portion of Friday's eight-page statement [which is available here] to excoriating the culture of Wall Street....
The sentencing was also notable for Weinstein's use of an advisory panel of fellow Eastern District judges, an increasingly common practice in Brooklyn federal court since 2005 when the U.S. Supreme Court determined in United States v. Booker, 543 U.S. 220, that sentencing guidelines should be treated as advisory rather than mandatory. Although Weinstein declined to name the judges he consulted, the panel did include the Eastern District's chief judge, Raymond Dearie.
Dearie said in an interview Monday that he expects the use of advisory panels to become "fairly standard" in the Eastern District in the near future for difficult cases, such as those with broad or long guidelines, and as the imperatives of the pre-Booker guidelines recede.
In the present case, Weinstein wrote that he convened the advisory panel because "of the severe impact of defendant's frauds on the international short- and long-term securities markets, and other complexities presented by this sentencing." In addition to the unspecified number of judges, the panel included "an expert on sentencing guidelines from the court's Probation Department," Weinstein wrote.
In pre-sentencing arguments, the prosecution contended that Butler faced a statutory maximum of 45 years and a guidelines recommendation of up to life in prison. The advisory panel recommended six to 10 years. Butler requested probation. Weinstein settled on a five-year sentence.
"I have imposed a lesser sentence [along] with loss of all defendant's assets and a heavy fine, for two primary reasons," he wrote. "[F]irst, defendant's young child and loving wife suggest the desirability of defendant's early presence at home, working and supporting his family economically and psychologically; second, a strong supportive network of extended family, friends, teachers, and potential employers, as well as defendant's positive reaction to supervision since his arrest, indicate a high probability of rehabilitation."
Dearie said he knew of no other district court that regularly uses advisory panels, but that when he testified before the U.S. Sentencing Commission last year, the Massachusetts District Court seemed "very" interested in the concept.
Though the Wall Street smack-down is what makes the headlines here, I think true sentencing geeks like me are likely to get more excited and intrigued by the idea that the use of advisory sentencing panels may become "fairly standard" in the Eastern District in the near future for difficult cases. And, in the near future, I hope there will be full transparency about who is on these panels and how they make their recommendations.
"Why doesn't O'Malley clear death row?"The title of this post is the headline of this potent commentary by Charles Lane at the Washington Post, which wonders why the strong anti-death-penalty rhetoric coming from the Governor of Maryland has yet to turn into strong anti-death penalty action. The whole piece is a must-read, and here are excerpts:
Maryland Governor Martin O’Malley staunchly opposes the death penalty: Given its flaws -- the lack of deterrent impact, the risk of a wrongful execution, high costs -- capital punishment can be neither morally nor practically justified, he argues.
The issue moves him to eloquence. “Human dignity is the fundamental belief on which the laws of this state and this republic are founded,” O’Malley wrote in a 2007 Post op-ed. “And absent a deterrent value, the damage done to the concept of human dignity by our conscious communal use of the death penalty is greater than the benefit of even a justly drawn retribution.”
As governor, O’Malley supported the creation of a Maryland Commission on Capital Punishment, which called for the abolition of the death penalty based on racial bias and other alleged inequities in the Maryland death penalty. Brandishing those findings, the governor fought for an abolition law last year, falling just short of victory....
But I wonder: If O’Malley is so courageous, and this is such an issue of principle for him, why are there still five people on death row in Maryland? Why doesn’t he commute their sentences to life imprisonment, as Maryland’s constitution and laws empower him to do? It would certainly be a more permanent -- and forthright -- approach than this indirect foot-dragging routine with the lethal injection protocols....
When the governor visited The Post on Jan. 21, I asked him these questions -- ready for almost any response but the stunningly unconvincing one he actually gave. O’Malley suggested that there might be some technical problem with a simultaneous commutation of all five sentences. “I don’t know off the top of my head legally whether I’d be prohibited from doing the joint blanket commutation or not,” he mused, adding that “the best course to follow is to handle each case individually.”
Okay, a colleague ventured, what about doing them one at a time? O’Malley hemmed and hawed again, offering a defense of his anti-death penalty legislative efforts and taking credit for Maryland’s improving murder rate. “Of course part of my duties require me to evaluate requests for pardons, requests for commutations and other things, and I’ll handle them in the due course,” he concluded....
For the record, according to several experts on the subject with whom I spoke, nothing in Maryland law prohibits the governor from pardoning or commuting the sentences of any prisoner or prisoners he wants, for whatever reason he wants, whether or not the prisoner requests clemency first.
O’Malley’s inability to muster one plausible, principled reason not to commute the death sentences tells me that he’s playing politics. O’Malley’s liberal Democratic party base dislikes the death penalty. But, overall, voters in the state support it 53 percent to 41 percent -- and much of that support is concentrated in Baltimore County, a swing jurisdiction in statewide elections. Clearing death row might turn pro-death penalty voters against O’Malley and hurt his re-election chances this fall.
January 25, 2010
Shouldn't Javaris Crittenton be a Second Amendment hero rather than a sentenced zero?
Perhaps because I taught a Second Amendment seminar last semester, I keep noticing cases in which a person gets in big criminal justice trouble for keeping or bearing arms in a manner that would seem to be within the spirit (if not the letter) of the Supreme Court's blockbuster ruling in Heller. For example, I have previously suggested that celebrity defendants such as Plaxico Burress and rapper Lil Wayne and Delonte West might have viable Second Amendment defenses after facing gun possession charges.
Today, I think I've really found a potential celebrity Hellerposter-child in light of the facts brought forth in the prosecution and sentencing of the NBA's Javaris Crittenton (basics here). According to this press release from the US Justice Department, Gilbert Arenas threatened to "shoot Crittenton in the face" and Crittenton believed that Arenas intended to harm him." In reponse, Crittenton placed a "lawfully owned, unloaded handgun into his backpack" in Virginia and brought it into the Wizards' locker-room in DC on the day that "he believed that Arenas would carry out his threat to shoot him." In addition, Crittenton never loaded this gun nor otherwise brandished the firearm in a threatening manner when he had an encounter with Arenas in the Wizards locker room, and he return this unloaded gun to his backpack upon "deciding that Arenas did not intend to shoot him."
Because I take the the right of armed self-defense discussed in Hellerquite seriously, I want to commend Javaris Crittenton for exercising what would seem to be his Second Amendment rights in a terrifically responsible manner. But, problematically, the federal criminal justice system has just declared Javaris Crittenton a criminal, rather than a constitutional hero. I suspect that adamant opponents of the Second Amendment and the Hellerruling have no concerns about how Crittenton is being treated, but I am wondering if others who are not categorically opposed to gun rights share my sense that he has gotten a pretty raw deal.
Some related posts on other celebrity gun possession cases:
- Now that Plaxico Burress has been formally indicted for gun possession, will Second Amendment fans come to his defense?
- Why Second Amendment supporters need to be helping out Plaxico Burress
- Rapper Lil Wayne cops a plea to New York gun possession charge
NBA player Javaris Crittenton quickly charged and sentenced for role in Wizards "gun fun"This press release provides the details concerning the swift (and sound?) form of justice administered to the other player involved in gun play with Gilbert Arenas last month in the locker room of the NBA's Washington Wizards. Here are the basics:
Javaris Crittenton, a 22-year-old member of the NBA's Washington Wizards, has pleaded guilty to a misdemeanor charge of possession of an unregistered firearm, U.S. Attorney Channing D. Phillips and Metropolitan Police Department Chief Cathy L. Lanier announced today. The guilty plea follows an investigation in which it was determined that Javaris Crittenton had brought a firearm to the Verizon Center in December 2009. This incident followed an argument Crittenton and teammate Gilbert Arenas had on a plane two days earlier.
Crittenton entered his plea this afternoon before Senior Judge Bruce Beaudin in the Superior Court for the District of Columbia. Following the guilty plea, Senior Judge Beaudin sentenced Crittenton to one year of unsupervised probation, and required Crittenton to perform community service through the NBA's Haiti project, and to further perform community service with a children's organization in Washington, DC.
"Possessing a firearm unlawfully in the District of Columbia can lead to nothing but trouble and can have serious consequences" said U.S. Attorney Phillips. "We commend Mr. Crittenton for accepting responsibility and hope he fully appreciates the gravity of his actions."
According to the factual proffer presented at the plea hearing, on Dec. 19, 2009, into the early morning hours of Dec. 20, 2009, Crittenton and Arenas became involved in a verbal exchange following a card game. In a heated exchange, Arenas stated he was too old to fistfight and threatened to shoot Crittenton in the face. Crittenton responded that he would shoot Arenas in his surgically-repaired knee. On the shuttle bus from the airplane to the terminal, Arenas further stated that he was going to burn or blow up Crittenton's car when they came to practice the following Monday. According to Crittenton, he believed that Arenas intended to harm him.
On Dec. 21, 2009, at approximately 9:00 a.m., Crittenton arrived at the Verizon Center, 601 F Street N.W., Washington, D.C., to receive medical treatment and attend Wizards' practice. According to Crittenton, before he left his home in Virginia for practice that day, Crittenton had placed a lawfully owned, unloaded handgun into his backpack because he believed that Arenas would carry out his threat to shoot him that day....
There is no evidence that Crittenton's firearm was loaded when he pulled it out of his backpack or that Crittenton ever loaded the firearm with ammunition. There also is no evidence that Crittenton ever chambered a round, pulled back the hammer, raised or pointed the firearm, or otherwise brandished the firearm in a threatening manner at any time during this incident. After deciding that Arenas did not intend to shoot Crittenton at that time, Crittenton placed his firearm back in his backpack and went from the locker room to the trainer's room.
Based on these "offense facts" as set forth in this press release, it sounds as though Crittenton could and should be a poster child for asserting a Second Amendment defense to his criminal charges in light of the Supreme Court's recognition of an armed self-defense right in Heller. Of course, the ruling in Helleris formally limited to the home. Yet its logic and principles would seem to support a claim that Crittenton's behavior in this incident was constitutionally protected.
In a subsequent post, I will pose the question of whether Crittenton's actions should be constitutionally protected ni light of Heller. In this post, I just wish to note how this case provides a great example of why many criminal defendants, even those with money to hire the best lawyers, will not often be eager to pursue all their potential constitutional defenses. Like many criminal defendants, Crittenton obviously wants to put this matter behind him ASAP. Consequently, rather than invest time and expenses raising a (very plausible?) Second Amendment defense to the charges (or even to enter a conditional plea), Crittenton apparently was eager just to get a deal done and try to move on.
Moving on, it will be interesting to see how this plea deal and the facts set out in this press release might impact Gilbert Arenas's fate at his scheduled March sentencing. Professor Michael McCann is already commenting thoughtfully on this front in this new SI column, which is headlined "Crittenton's plea agreement on gun charges could affect Arenas' future."
Lots of good reading around the crim law blogosphere...
at many of my favorite criminal law blogs, including:
California Corrections Crisis (with recent favorite "GPS Monitoring: Now Expanded to Include Gang Members")
- Prison Law Blog (recent fav "New Jersey Prisoner Alleges He Was Subjected to a Fake Electrocution")
SCOTUS grants cert on another mandatory minimum sentencing issue
Adding to a docket that is already heavy with important sentencing cases, the Supreme Court this morning added another through its cert grant the consolidated cases of Abbott v. United States (09-479) and Gould v. United States (09-7073). Here is how SCOTUSblog decribes the issue in Abbott, along with links to key materials in the case:
Title: Abbott v. United States
(1) Whether the term “any other provision of law” of 18 U.S.C. 924(c) includes the underlying drug trafficking offense or crime of violence; and (2) if not, whether it includes another offense for possessing the same firearm in the same transaction?
As federal criminal justice practioners know, the mandatory minimum sentencing provisions in 924(c) concerning the use of firearms in connection with other offenses are extremely significant and consequential. It is unclear if Abbott and Gould could have a broad impact in other cases, but they clearly present yet another important set of cases to watch over the next few months.
SCOTUS decides to dodge reconsideration of big confrontation clause issues
Many criminal justice court-watchers were keeping a close eye on this term's seemingly big Sixth Amendment confrontation clause case, Briscoe v. Virginia, based on the notion that the case would give the Justice a new opportunity to examine la st year's controversial, 5-4 decision in Melendez-Diaz v. Massachusetts. But SCOTUS issued an opinion in Briscoe this morning that suggests that the Justices decided a dodge rather than a reconsideration is more appropriate right now. Here is the full text of today's per curiam opinion in Briscoe:
We vacate the judgment of the Supreme Court of Virginia and remand the case for further proceedings not inconsistent with the opinion in Melendez-Diaz v. Massachusetts, 557 U. S. ___ (2009).
Of course, as astute readers know, the Sixth Amendment's confrontation clause does not even technically apply in sentencing proceedings, so this is not formally a sentencing issue. But it does provide another interesting tea leaf concerning how the addition of (former state prosecutor) Justice Sotomayor to the Supreme Court may (or may not) change how the Court does criminal justice business.
What can and should be done about Pennsylvania's decade-long moratorium on executions?This new piece in the Pittsburgh Post-Gazette, which is headlined "Death row inmates stay indefinitely: No one has been executed in Pennsylvania since 1999," raises the question in the title of the post. As the start of the article highlights, Pennsylvania's Governor continues to sign death warrants despite recognizing that the state has had a de facto moratorium on executions for more than a decade:
Richard Baumhammers and Ronald Taylor have a lot in common. Both are racially motivated mass killers who slaughtered innocents within a month of each other a decade ago, Mr. Baumhammers targeting minorities and Mr. Taylor targeting whites. Both are on death row. And neither is likely to be executed for many years, if ever.
Gov. Ed Rendell signed a death warrant for Mr. Baumhammers, 44, last week, but he admitted the execution isn't likely to happen on March 18, the scheduled date for lethal injection. That's because the state has what the governor calls a "de facto" moratorium on executions.
The governor has signed 101 death warrants, including one for Mr. Taylor in 2006. But the state hasn't killed anyone since Gary Heidnik in 1999. More than 220 prisoners are on death row statewide.
It strike me as problematic and irresponsible (not to mention expensive) for the executive branch in Pennsylvania to keep pursuing death sentences and signing death warrants if it is now a legal and political given that the state will never be able to actually carry out an execution. Indeed, there are reasons to suspect and fear that juries in Pennsylvania may be more likely to return a death verdict based on the (apparently reasonable) assumption that no defendant will actually ever again be executed in the state.
Of course, if state and federal judges are truly dead set against letting any Pennsylvania murderers get to the death chamber, there may little that the executive or legislative branch in Pennsylvania can do to alter these realities. But, as the question in title of this post is meant to suggest, I suspect that Keystone State legislators and executive official could probably do something to try to break this harmful capital punishment log-jam. And perhaps readers can use the comments to make some suggestions for those (few? many?) Pennsylvania lawmakers and officials who may be truly troubled by the state's decade-long de facto moratorium on executions.
"The Virginia debate: Should marijuana be decriminalized? legalized?"
The title of this post is the headline given by The Daily Press newspaper to this archive of recent articles and commentaries about debates in Virginia concerning marijuana crimes and punishment. Here are the headlines, with links and summaries, from some of the pieces in the archive:
Va. lawmaker proposes medical marijuana bill: Del. Harvey B. Morgan acknowledges he might not seem a likely proponent of decriminalizing marijuana and making the drug available medically. He's 79, a Republican and he's never touched the stuff.
Where the newspaper stands: Decriminalizing marijuana makes sense and will free up police and courts to deal with real crimes: The bill was introduced by a bow-tie wearing, Republican, Virginia gentleman. Not by an aging hippie or a street-corner drug merchant.
Virginia should legalize marijuana: It's not just "left coast" states like California and Washington that are considering marijuana law reforms to help balance state budgets. For the first time in years, the Virginia General Assembly will consider common-sense marijuana law reform. House Bill 1134 would replace criminal penalties for simple marijuana possession with a civil penalty of $500.
Federal judge rejects plea with long sentencing recommendation because it is not long enoughThis New York Times article from late last week, which is headlined "Plea Rejected in Case of Hepatitis Infections," spotlights the role that victims can sometimes play in getting sentencing judges to reject plea deals even when they include significant terms of imprisonment. Here are the details:
Suggesting that 20 years in prison was not enough punishment for the crime, a federal judge on Friday rejected a plea agreement for a former hospital technician and drug user who admitted that she exposed hundreds of patients in her care to hepatitis C.
The judge, Robert E. Blackburn, said the agreement with the former hospital worker, Kristen D. Parker, inordinately restrained his discretion and did not take into account the views of victims, many of whom submitted anguished written statements. It is unusual, legal experts said, for a judge to reject a plea agreement.
Ms. Parker, 27, admitted to the police on videotape that while working at Rose Medical Center in Denver in 2008 and 2009, she stole pain-medication syringes from operating room trays, replacing them at times with needles she had already used to inject herself with heroin.
Seventeen Rose patients have so far been found to have a strain of hepatitis C linked through genetic sequencing to the strain in Ms. Parker’s blood, according to the Colorado Department of Public Health and Environment. Hepatitis C affects liver function and can have lifelong consequences.
Ms. Parker’s lawyer, Gregory C. Graf, said he had not consulted yet with his client but expected she would probably persist with her guilty plea, giving the judge discretion as to her sentence when the case reconvenes next month. Ms. Parker could also change her plea to not guilty and insist on a jury trial, or try to reach another plea agreement with prosecutors.
Judge Blackburn warned Ms. Parker in the brief hearing in Federal District Court, before a courtroom packed with former Rose patients and their families, that if she chose to continue with her guilty plea, the sentence could be stiffer. “I may dispose the case less favorably,” Judge Blackburn said....
A lawyer representing 13 of the Rose hepatitis patients, Hollynd Hoskins, also specifically argued to Judge Blackburn that the United States attorney’s office was not adequately consulting with her clients as required by the [federal Crime] Victims Rights Act.
The United States attorney for Colorado, David M. Gaouette, in a statement on Friday, said, “The victim issues are vitally important in this case and we will continue to work closely with them to ensure their voices are heard.”
January 24, 2010
"State must put 'death' back in death row"The title of this post is the headline of this new commentary in the Sacremento Bee that is authored by David E. Brown, a former commissioner and chief counsel of California's Parole Board. Here are a few excerpts:
Admittedly, California's death penalty is not perfect and probably could never be reformed to the extent that it could always be applied in a fair and just manner. The problem, however, with California's death penalty is its inability to carry out executions following convictions and sentences. California leads the nation with more than 600 inmates on death row, but only 14 have been executed since the reinstatement of the death penalty in 1978. A person sentenced to death in California is more likely to die of old age or natural causes than to be executed.
The opponents of the death penalty, in calling for its abolishment, ignore the victims of murderers and the right of society to protect itself from future crimes by convicted murderers. There have been cases in California of persons sentenced to death who were subsequently paroled only to murder again. I have personal knowledge of such cases.
As a result of highly publicized murders by murderers released on parole, California voters have consistently voted to support the death penalty. Originally restored by voters' initiative in 1977, every subsequent measure to expand the provisions of the death penalty, most recently the gang-murder special circumstance in March 2000, has been overwhelmingly approved by the voters.
Because of the judicial system's failure to approve executions, the death penalty in California has become a de facto life-without-possibility-of-parole sentence. While California's death penalty is far from perfect, there are some crimes that are so egregious that any punishment less than death would be inadequate as a matter of basic justice. There are also certain situations where the death penalty may be morally required to prevent the taking of an innocent life.
Perhaps the only truly notable aspect of this relatively standard defense of the death penalty is the background of its author. But I am also drawn to this commentary because my Fordham sentencing seminar is about to begin a death penalty unit, and it is intriguing and remarkable how the author of this commentary mixes a melange of traditional death penalty justifications (s well as their obvious counter-arguments) in a few paragraphs.
Incapacitation, democratic theory and retribution all get some understandable attention in this defense of the death penalty by Mr. Brown. But his description of California death sentences as now a "de facto life-without-possibility-of-parole sentence" suggests that his concerns about future crimes by parolees can be handled without executions. Moreover, his initial concession that California's capital system will probably never be applied in a "fair and just manner," would seem to at least partially undercut arguments based in democratic theory and retribution. I would question the claim that California voters support a capital punishment system that necessarily will be applied in an unfair and unjust manner, and I also think most Kantian retributivists who view executions as a matter of "basic justice" would at least worry about whether such basic justice is truly served by a punishment that is distributed in an inherently unfair and unjust manner.
I make thiese point neither to praise or criticize Mr. Brown's commentary in particular, but rather just to note and lament the fact that political and public discourse concerning the death penalty remains so simplistic. I also look forward to seeing what might Fordham students say about this commentary in our seminar.
A crappy case concerning prisoner poo before New Hampshire Supreme CourtThough easily the basis for a lot of bad dirty jokes (as this post has already excreted), this story from the The Concord Monitor actually raises a host of interesting legal issues concerning prison conditions and criminal assaults. (Potty tip: How Appealing.) The piece is headlined "Prison waste is matter for court; Justices to rule if feces on floor equals assault," and here is how it gets started:
It's a crime for inmates to throw feces, urine and blood at jail and prison staff. The question before the state Supreme Court is whether throwing it on the floor for staff to clean up also qualifies as assault. A lower court has said no. The state attorney general's office says yes and has asked the high court to decide. Meanwhile, prison and jail officials are watching.
"This is part of daily life we have to be on guard for," said Jeff Lyons, spokesman for the state's prisons. He said officers deal with inmates throwing their bodily fluids several times a year, most often in maximum-security units. "You never know when it's going to happen."
Lawmakers passed the current law forbidding the throwing of bodily fluids in 2000 at the request of prison officials tired of being targeted by inmates. During legislative hearings on the bill, corrections officers described being spit on, being soaked with the contents of a colostomy bag, and having urine thrown in their eyes and mouth.
"We are talking about some kind of behavior that borders on animalistic," Denis Parker, then of the State Employees' Association, told lawmakers at the time. "And more than that, we are talking about potential dangers of getting some real infectious dangerous disease that could probably at some point take your life."
But what if the corrections staff isn't actually hit? The question before the state Supreme Court involves six inmates from the Hillsborough County jail who were indicted in 2009 on several counts of assault by prisoner. The indictments allege the six men committed assault by throwing feces and urine on the jail floor for corrections staff to remove.
The law under which they were charged says it is illegal for inmates to "harass" corrections staff by causing or attempting to cause "employees to come in contact with blood, seminal fluid, urine or feces by throwing or expelling such fluid or material." Attorneys from the Hillsborough County Attorney's Office argued the men's actions qualified as assault because the men intended to harass the jail staff and knew employees would come into contact with the fluids when they cleaned the floor.
The men, Timothy Spade, Ralph Carey, Jarrell Wilson, Jason Connolly, Ryan Freeman and Peter Gibbs, challenged the charges in superior court. Their lawyers argued the indictments did not adequately allege how jail officers had actually come into contact with the fluids. They also criticized the assault law and its use of the word "contact" as too vague. The lawyers asked the court to dismiss the charges against all six men.