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October 19, 2010

"A 10th Amendment Drama Fit for Daytime TV Heads to the Supreme Court"

The title of this post is the headline of this piece by Adam Liptak in today's New York Times. Here are excerpts (with the sentencing angle emphasized below):

[The Supreme Court] has decided to consider what to do about a woman hellbent on poisoning her best friend. The woman, Carol A. Bond of Lansdale, Pa., was at first delighted to learn that her friend was pregnant.  Ms. Bond’s mood darkened, though, when it emerged that her husband was the father.  “I am going to make your life a living hell,” she said, according to her now-former friend, Myrlinda Haynes.

Ms. Bond, a microbiologist, certainly tried.  On about two dozen occasions, she spread lethal chemicals on her friend’s car, mailbox and doorknob.  Ms. Haynes, who managed to escape serious injury, complained to the local police.  They did not respond with particular vigor.  After checking to see whether the white powder on her car was cocaine, they advised her to have it cleaned.

Federal postal inspectors were more helpful.  They videotaped Ms. Bond stealing mail and putting poison in the muffler of Ms. Haynes’s car.  When it came time to charge Ms. Bond with a crime, federal prosecutors chose a novel theory.  They indicted her not only for stealing mail, an obvious federal offense, but also for using unconventional weapons in violation of the Chemical Weapons Convention of 1993, a treaty aimed at terrorists and rogue states.

Had she been prosecuted in state court, Ms. Bond would most likely have faced a sentence of three months to two years, her lawyers say.  In federal court, she got six years.  Ms. Bond’s argument on appeal was that Congress did not have the constitutional power to use a chemical weapons treaty to address a matter of a sort routinely handled by state authorities.

She relied on the 10th Amendment, the one so beloved by Tea Party activists.  It says that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

A unanimous three-judge panel of the federal appeals court in Philadelphia said Ms. Bond’s argument was a serious one of “first impression.”  Then the court ducked answering the question by saying Ms. Bond was not entitled to raise it.  Only states, it said, can mount 10th Amendment challenges.

Paul D. Clement, a solicitor general in the administration of President George W. Bush, now represents Ms. Bond. He called the idea that Ms. Bond lacks standing to challenge the law under which she was imprisoned “startling” and “absurd.”

More broadly, Mr. Clement wrote, the Bond case is an instance of an issue that has lately united conservatives, libertarians and liberals.  They say there are too many federal crimes, that they are often simultaneously vague and harsh, and that they undermine state authority to maintain public safety.  Mr. Clement said his client’s poisonous rampage was not “successful or particularly sophisticated.”

“Domestic disputes resulting from marital infidelities and culminating in a thumb burn are appropriately handled by local law enforcement authorities,” Mr. Clement wrote. “Ms. Bond’s assault against her husband’s paramour did not involve stockpiling chemical weapons, engaging in chemical warfare” and the like, he added.

In the appeals court, federal prosecutors embraced the idea that Ms. Bond was powerless to attack her conviction on 10th Amendment grounds. But the federal government reversed course in the Supreme Court. “A criminal defendant has standing to defend herself by arguing that the statute under which she is being prosecuted was beyond Congress’s Article I authority to enact,” Acting Solicitor General Neal K. Katyal told the justices.

Ms. Bond has been in prison for more than three years. Given that two sides agree her case was mishandled, the Supreme Court might have summarily reversed the appeals court’s decision.  Instead, it will hear arguments in the case in the next few months and probably issue a decision by June.  That means the case of the poisoned paramour, known formally as Bond v. United States, No. 09-1227, will be among the more closely watched this term.

I am not an expert on standing or on the Tenth Amendment, so I have no keen sense of how this case will cash out before SCOTUS.  But while the difference between possible state and federal sentencing outcomes seems only tangential to the formal legal issues in Bond, the difference does impact the equities of the case and perhaps will also impact how the Justices decide to develop the law.

October 19, 2010 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (7) | TrackBack

October 18, 2010

Update on sentencing debate over doctor and wife involved in (extreme!?!) health care fraud

In this post from earlier this month, I noted the start of the sentencing debate surrounding a Kansas case in which the feds are seeking the harshest possible sentence, life without parole, for notable (white-collar?) offenses.  This new AP story, headlined " Kansas doctor convicted in overdose deaths seeks 20-year term instead of life," provides the latest report on what the defendants are to argue at sentencing.  Here is how the AP story starts:

A Kansas doctor and his wife whose clinic is linked to dozens of overdose deaths have asked a federal judge to sentence them on Tuesday to the mandatory minimum 20 years in prison, rather than the life sentences sought by prosecutors.

A court document filed Saturday by defense attorneys in the case of Dr. Stephen Schneider and his wife, Linda, argues unduly harsh sentences are likely to discourage doctors to prescribe controlled drugs for fear their patients will mislead them or not use medications as directed.

The defense also argued excessive sentences would deter other physicians from accepting government-sponsored insurance that involves complex billing procedures fraught with human error.

The defense argued that the sentencing guidelines were intended to punish drug dealers who traffic on the street in heroin and crack cocaine, substances which have no medical purpose.  "Plainly, this type of conduct is a far cry from the acts at issue here, and treating the defendants similarly to run-of-the-mill drug dealers would result in an excessive and unfair punishment," the defense wrote.

Recent related post:

October 18, 2010 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (14) | TrackBack

"Former surgeon general calls for marijuana legalization"

The title of this post is the headline of this new CNN piece.  Here is how the piece starts and ends:

Former U.S. Surgeon General Joycelyn Elders told CNN Sunday she supports legalizing marijuana.

The trend-setting state of California is voting next month on a ballot initiative to legalize pot, also known as Proposition 19. The measure would legalize recreational use in the state, though federal officials have said they would continue to enforce drug laws in California if the initiative is approved.

"What I think is horrible about all of this, is that we criminalize young people. And we use so many of our excellent resources ... for things that aren't really causing any problems," said Elders. "It's not a toxic substance."...

Elders stressed the drug is not physically addictive and pointed to the damaging impact of alcohol, which is legal.  "We have the highest number of people in the world being criminalized, many for non-violent crimes related to marijuana," said Elders. "We can use our resources so much better."

October 18, 2010 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing | Permalink | Comments (25) | TrackBack

En banc Second Circuit rejects Apprendi challenge to NY persistent felony statute

It has been quite some time since Sixth Amendment fans have had a big, split Apprendi/Blakely opinion to chew on.  Today the Second Circuit has filled the void with a big, split en banc ruling in Portalatin v. Graham, 07-1599 (2d Cir. Oct. 18, 2010) (available here).  Here is how the majority opinion (per Judge Wesley) gets started:

Petitioners Carlos Portalatin, William Phillips, and Vance Morris were separately convicted in state court and received sentences pursuant to New York’s persistent felony offender statute, N.Y. Penal Law § 70.10.  Each petitioned for a writ of habeas corpus on the ground that the New York courts engaged in an unreasonable application of clearly established federal law in affirming their sentences.  Specifically, they argue that the Sixth Amendment guarantee of the right to an impartial jury, as construed by the Supreme Court in Apprendi v. New Jersey, 530 U.S. 466 (2000) and its progeny, proscribes the long-used sentencing procedure in New York that results in judicially enhanced sentences for certain recidivist offenders.

In the case of petitioner Portalatin, the United States District Court for the Eastern District of New York agreed, issuing a writ of habeas corpus from which the State now appeals. See Portalatin v. Graham, 478 F. Supp. 2d 385, 386 (E.D.N.Y. 2007) (Gleeson, J.). In the cases of petitioners Phillips and Morris, the United States District Court for the Southern District of New York separately declined to issue such writs. See Phillips v. Artus, No. 05 Civ. 7974, 2006 WL 1867386, at *1 (S.D.N.Y. June 30, 2006) (Crotty, J.); Morris v. Artus, No. 06 Civ. 4095, 2007 WL 2200699, at *1 (S.D.N.Y. July 30, 2007) (Sweet, J.). Petitioners appealed.

In a consolidated appeal, a panel of this Court concluded that New York’s persistent felony offender sentencing scheme violates the Sixth Amendment, and that the New York courts unreasonably applied clearly established Supreme Court precedent in holding otherwise, but remanded the matters to the district court for consideration of whether those errors were harmless. See Besser v. Walsh, 601 F.3d 163, 189 (2d Cir. 2010).

A majority of judges in active service then called for this rehearing en banc. The Court now holds that the state courts did not engage in an unreasonable application of clearly established Supreme Court precedent in affirming the convictions. Accordingly, the grant of the writ to Portalatin is reversed, and the denials of the writ to Phillips and Morris are affirmed.

Here is a key passage from the start of Judge Winter's dissent:

My colleagues rely heavily upon AEDPA deference but identify only one constitutional argument dispositive of the claims of all petitioners -- regarding the applicable maximum sentences for Apprendi purposes -- and that one has been specifically rejected by the Supreme Court in Cunningham v. California, 549 U.S. 270 (2009) and Blakely v. Washington, 542 U.S. 296 (2004).  Except for that discussion, my colleagues’ opinion never responds directly to petitioners’ claims and proffers no other identifiable constitutional theory to which AEDPA deference can be given.

We can all be virtually certain that one or more of the losing NY defendants in this case will appeal to the US Supreme Court. Less clear is whether the current Justices are interested in another round of Apprendi/Blakely squabbling. I would not be suprised if new Justices Alito and Sotomayor have an interest in sharing their perspectives on the reach of Apprendi/Blakely, but I also would not be surprised if most of the other Justices are content to take a pass.

October 18, 2010 in Almendarez-Torres and the prior conviction exception, Blakely in the States, Blakely in the Supreme Court, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (10) | TrackBack

Justice Sotomayor dissents from cert denial in prisoner rights case

The one notable action for criminal justice fans in today's SCOTUS orders comes via Justice Sotomayor's dissent from the denial of certiorari in Pitre v. Cain (available here). It starts and ends this way:

Petitioner Anthony Pitre, a Louisiana state prisoner,stopped taking his HIV medication to protest his transferto a prison facility.  He alleges that respondents at thefacility punished him for this decision by subjecting him tohard labor in 100-degree heat.  According to Pitre, respondents repeatedly denied his requests for lighter duty more appropriate to his medical condition, even after prison officials twice thought his condition sufficiently serious torush him to an emergency room.  In response to one such request, respondent Cain expressly acknowledged in a letter attached to Pitre’s complaint that Pitre was “dealing with unnecessary pain and suffering, as well as cruel and unusual punishment,” but he accused Pitre of “bringing it on himself” by refusing to take his medication. App. F toPet. for Cert. (Exh. A-2). Cain concluded, “If you are suffering because of your own choices, so be it.”   As a result of respondents’ actions, Pitre alleges, his already-fragile medical condition deteriorated even further.

The courts below deemed these allegations insufficient to state an Eighth Amendment violation....

Pitre’s allegations, if true, describe “punitive treatment [that] amounts to gratuitous inflictionof ‘wanton and unnecessary’ pain that our precedent clearly prohibits.”  I cannot comprehend how a court could deem such allegations “frivolous.”  Because I believe that Pitre’s complaint states an Eighth Amendment violation, I would grant the petition for a writ of certiorari and reverse the judgment below.

October 18, 2010 in Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

"Should kids be sentenced to life in prison?"

The title of this post is the headline of this article from Wisconsin which effectively review the latest from in the battle over juvenile offenders getting LWOP sentences.  Here are excerpts:

In 1998, Omer Ninham was an abused 14-year-old child of alcoholic parents. He was also a murderer. After throwing a 13-year-old boy to his death from the top of a hospital parking ramp, Ninham was sentenced to life in prison without parole — essentially condemned to die in prison.

Last week, the Wisconsin Supreme Court decided to review Ninham’s sentence in a case that could determine how age should factor into the sentencing of kids who are sent to adult court.

Ninham’s is one of a number of cases that have been taken up by the Montgomery, Ala.-based Equal Justice Initiative in an effort to turn back laws at both the state and federal level that allow kids to be sent away for life.  “We were very concerned about this community of very young kids who had been sentenced to life without parole and almost no one knew anything about them” says Bryan Stevenson, executive director of the group....

In 2004 the U.S. Supreme Court ruled that it is unconstitutional to impose capital punishment for offenders under the age of 18, which set in motion a number of legal challenges on behalf of children convicted of crimes in adult court.  Earlier this year, the high court again distinguished between adolescents and adults when it ruled that it was unconstitutional to permanently lock up adolescents who commit non-capital offenses.

Now, says Stevenson, courts need to make the same distinction between adults and children who commit capital crimes. And his group is making some headway.  Earlier this year the Iowa Supreme Court gave an Iowa woman, now 32, the right to challenge her life sentence as cruel and unusual punishment for a 1993 killing she committed when she was 14....

Stevenson says Wisconsin is one of 18 or so states that allow children to be sent away for life, and Ninham, now 26, is in a category by himself: the only inmate in a Wisconsin prison who committed a crime at 14 and has no hope of going free.

Generally, Stevenson says, legislatures didn’t intend to put kids away for life. Instead, they made it easier to put kids into the adult system and they also stiffened the punishments available for adults. “They’ve done a lot of things that are catching kids in ways that I think have not been carefully considered,” he says....

Wisconsin Attorney General J.B. Van Hollen, who has assigned an attorney from his department to argue against giving Ninham a chance at parole, would not comment on the Supreme Court’s acceptance of the case.  But after the appeals court decision last year he issued a statement saying, “For some juvenile offenders, a life sentence without parole is fair and just punishment.  Ninham was properly punished for a horrible crime.”

But Stevenson argues that like all adolescents, Ninham has changed as he has matured. Before the murder, he was abused and neglected.  He had never owned a toothbrush until he was sent to a group home at age 14.  His alcoholic parents allowed him to imbibe alcohol daily, and his father and brothers beat him.  Soon after he committed the murder, Ninham was placed in a center for at-risk Native American kids and started to make “extraordinary progress,” says Stevenson, adding, “We think he’s continued to make good progress.”

October 18, 2010 in Assessing Graham and its aftermath, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9) | TrackBack

October 17, 2010

Obama Adminstriation promising to prevent states from expanding individual liberty and free markets

Though a bit sharp, I think the title of this post is a fair and balance (and also accurate) description of this news report from the Los Angeles Times, which is headlined "Holder promises to enforce U.S. drug laws if Prop. 19 passes."  Here are the basics:

Stepping up the Obama administration's opposition to Proposition 19, the nation's top law enforcement official promised to "vigorously enforce" federal drug laws against Californians who grow or sell marijuana for recreational use even if voters pass the legalization measure.

U.S. Atty. Gen. Eric Holder's response to the initiative comes as the administration has been under pressure to campaign against it more forcefully. Last week, Mexico's president, Felipe Calderon, chided the Obama administration for not doing enough to defeat it. And last month, nine former heads of the Drug Enforcement Administration publicly urged Holder to speak out.

In a letter sent Wednesday to the former DEA administrators, Holder wrote, "Let me state clearly that the Department of Justice strongly opposes Proposition 19. If passed, this legislation will greatly complicate federal drug enforcement efforts to the detriment of our citizens."

Holder's letter underscores that a period of turmoil, pitting the federal government against pot legalization backers, will ensue if voters approve Proposition 19. After California legalized medical marijuana in 1996 the DEA launched numerous raids against dispensaries and growers.

Los Angeles County Sheriff Lee Baca, who is a co-chairman of the main opposition committee, released the letter at a news conference at his headquarters Friday, flanked by two former DEA heads, the district attorney and the Los Angeles city attorney. "He is saying it is an unenforceable law and the federal government will not allow California to become a rogue state on this issue," Baca said. "You can't make a law in contradiction to federal law as a state. Therefore Proposition 19 is null and void and dead on arrival."

Proponents of the measure on the Nov. 2 ballot assailed the attorney general's one-page letter, denouncing his intention to disregard the will of California voters and his defense of a failed war on drugs. "We're not necessarily surprised that the establishment is coming down on the side of the status quo," said Dale Sky Jones, a spokeswoman for the Proposition 19 campaign.

The initiative would allow Californians age 21 and older to grow up to 25 square feet of marijuana and possess up to an ounce. It also allows cities and counties to authorize cultivation and sales, and to tax them. Several cities, including Oakland, appear to be poised to do so if the law passes. Polls have consistently shown that about half of the state's electorate favors legalizing marijuana....

[Holder's letter] noted that prosecutions under the federal Controlled Substances Act remain a "core priority" and wrote, "We will vigorously enforce the CSA against those individuals and organizations that possess, manufacture, or distribute marijuana for recreational use, even if such activities are permitted under state law." He did not say how he intends to do that, but said the department "is considering all available legal and policy options."...

Robert Raich, a lawyer who has handled two medical marijuana cases that went to the U.S. Supreme Court and supports Proposition 19, said the initiative does not violate federal law because it changes only state law, not federal law. "Simply because California and the federal government choose to punish an act differently does not mean they have a conflict," he said. He said it is no different than the state's medical marijuana laws, which have been upheld in court. But he said DEA agents could still enforce federal drug laws. "If the federal government wanted to waste its limited resources trying to prosecute some marijuana facility in Oakland, then nothing would stop them from doing that," he said.

The measure's proponents noted that Proposition 215, the medical marijuana law, drew a similar federal reaction. "This is 1996 all over again," said Stephen Gutwillig, the state director of the Drug Policy Alliance. But he noted that, besides California, 13 states and the District of Columbia now allow medical marijuana. "All that happened without a single change in federal law."...

Until Holder released his letter Friday, the Obama administration's fight against the initiative was largely being carried out by the drug czar, Gil Kerlikowske.  The White House press office, calling it a "sensitive issue," referred questions on the president's role to the Justice Department, which did not respond to a request for information or for an interview with Holder.

I am disappointed, but not really surprised, that this story has yet to generate backlash or even comment from the usual suspects on the right who are so eager and usually so quick to attack every supposed "big government" move by the Obama Administration.  For reasons I am still struggling to fully understand, the traditional conservative voices on the right who gush about individual liberty and free markets, and who love to bash big government and the Obama Administration, seem to flee from their purported principles when the liberty and free markets at issue involving growing and smoking a weed.

As I have noted before in this post, the group Liberty Central started by Virginia Thomas has a website with the "primary objective" to seek "to harness the power of citizen voices, inform everyday Americans with knowledge, and activate them to preserve liberty." In addition, the "Founding Principles" webpage states that "[f]rom its earliest stages, Liberty Central identified limited government, individual liberty, free enterprise, national security, and personal responsibility as the five principles that best capture the foundations we, as a nation, need to preserve." It is because I am a firm believer in these important principles that I have signed a letter expressing support of Proposition 19.  It is also why I will remain deeply troubled by anyone on the right who pledges allegiance to these principles and yet supports the promise of AG Holder and the Obama Administration to take federal action to prevent Californians from vindicating these principles through reform of marijuana laws.

Some related posts on pot policy and politics:

October 17, 2010 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (19) | TrackBack

"A Distributive Theory of Criminal Law"

The title of this post is the title of this interesting-looking new piece by Professor Aya Gruber, which is in the October 2010 of the William and Mary Law Review.  Here is the abstract:

In criminal law circles, the accepted wisdom is that there are two and only two true justifications of punishment -– retributivism and utilitarianism.  The multitude of moral claims about punishment may thus be reduced to two propositions: (1) punishment should be imposed because defendants deserve it, and (2) punishment should be imposed because it makes society safer.  At the same time, most penal scholars notice the trend in criminal law to de-emphasize intent, centralize harm, and focus on victims, but they largely write off this trend as an irrational return to antiquated notions of vengeance.  This Article asserts that there is in fact a distributive logic to the changes in current criminal law.  The distributive theory of criminal law holds that an offender ought to be punished, not because he is culpable or because punishment increases net security, but because punishment appropriately distributes pleasure and pain between the offender and victim.  Criminal laws are accordingly distributive when they mete out punishment for the purpose of ensuring victim welfare.

This Article demonstrates how distribution both explains the traditionally troubling criminal law doctrines of felony murder and the attempt-crime divide, and makes sense of current victim-centered reforms.  Understanding much of modern criminal law as distribution highlights an interesting political contradiction.  For the past few decades, one, if not the most, dominant political message has emphasized rigorous individualism and has held that the state is devoid of power to deprive a faultless person of goods (or “rights”) in order to ensure the welfare of another.  But many who condemn distribution through the civil law or tax system embrace punishment of faultless defendants to distribute satisfaction to crime victims.  Exposing criminal law as distributionist undermines these individuals’ claimed pre-political commitment against government distribution.

October 17, 2010 in Purposes of Punishment and Sentencing, Recommended reading, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

Media reports on public support for Atkins, Graham, Heller and Roper

As detailed in this new press story, which is headlined "Public backs most high court rulings," a recent report suggests that the general public is generally supportive of the Supreme Court's recent pro-defendant Eighth Amendment rulings and pro-gun Second Amendment ruling.  Here are snippets from the press story:

The Supreme Court shifted to the right four years ago when conservative Justice Samuel A. Alito Jr. succeeded moderate Sandra Day O’Connor.  And if American public opinion is the measure, the Roberts court has made the right call in most of its major decisions since then, according to a recent study that asked respondents about cases.

A strong majority favored conservative rulings that prohibited “partial-birth” abortions, upheld a homeowner’s right to have a gun, and required voters to show photo identification.

The majority also supported liberal rulings that said environmental regulators could restrict the carbon pollution linked to global warming and that struck down state laws that put juvenile criminals in prison for life without hope for parole....

Columbia University law professor Nathaniel Persily said the court historically has been “to the left of the public” on issues that attract attention, such as crime, religion and affirmative action. Along with Harvard political science professor Stephen Ansolabehere, he set out to survey the public’s view of actual cases.  Their Constitutional Attitudes Survey asked more than 1,600 respondents in 2009 and 2010 about issues that were before the Supreme Court....

Overall, the court’s current and nuanced position on the death penalty and abortion is in line with public opinion, the survey found.

A majority supports the death penalty for murder, and the court has upheld capital punishment.  The public also agreed with the rulings that ended the death penalty for those who are mentally handicapped (in 2002) and for those under age 18 at the time of their crimes (in 2005).

On abortion, the public supports –- by a 61 percent to 38 percent majority –- the Roe v. Wade ruling that set forth the right to an abortion, but it also supports regulations and restrictions, including limits on late-term abortions.

At Nathaniel Persily's webpage, I found what appears to be the July 2010 report on the Constitutional Attitudes Survey upon which this press article is based.  This 113-page "Constitutional Attitudes Field Report" (which is available for download below) is a bit hard to sort through, and I was not able to find the results showing public agreement with the 2010 Graham LWOP decision.  Also, though not reported by the press, it appears that the survey also revealed strong disagreement with the Supreme Court's 2008 Kennedy decision prohibiting the death penalty for child rapists.

Download Constitutional Attitudes Field Report_Client-1

UPDATE:  Via a helpful e-mail, Professor Persily has clarified where the Graham results can be found and what they showed:

We asked the following question (page 99 of the codebook):

In general do you agree or disagree with the following statements: A state should be allowed to sentence for life in prison a person under 18 years of age for armed burglary.

Stongly agree 10.9%

Agree Somewhat 24.6%

Disagree Somewhat 38.0%

Strongly disagree 23.4%

Refused to answer 3.1%

October 17, 2010 in Graham and Sullivan Eighth Amendment cases, Kennedy child rape case, Second Amendment issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9) | TrackBack

Feds pursuing death penalty for violent gang members

As detailed in this new NPR story, which is headlined "Death To Gang Members: The Feds' New Tactic," the US Justice Department has started to try a new approach to taking on violent gangs:

Alejandro Enrique Ramirez Umana has an unfortunate claim on history. He is the first member of the MS-13, or Mara Salvatrucha, gang to be sentenced to death under the federal system of capital punishment, according to the Justice Department.

Prosecutors and FBI officials say the Umana investigation, which took them from North Carolina to California to El Salvador, is a model for how federal authorities will attack a growing gang threat that is leaching into smaller cities across America's heartland.

Umana is only 25. But over the course of his relatively short life, he allegedly killed five people in his role as a traveling evangelist for the MS-13 gang....

"You know, here's a guy who probably, if the normal state prosecution had proceeded, he probably would have been locked up for a significant period of time if not the rest of his life," says John Bryson, who defended Umana.

But then the federal authorities entered the picture, taking over the state case and finding three other murders Umana allegedly committed.

Federal authorities have turned the investigation into a model for their strategy: to build bigger national prosecutions of gangs, to work with investigators across the U.S. and Central America, and to sometimes ask a jury to vote for capital punishment....

The FBI says international street gangs like MS-13 are moving into heartland cities that may not have much experience prosecuting them, which makes federal help in investigating all the more important.

"As you get across the country and realize that places like Charlotte and Nashville and Greenbelt, Md., have the same budding gang problems that larger cities have had, you realize there's a need to team up and share the sort of experience that we're gathering here in Washington with folks that might benefit from it on the road," says Jim Trusty, who leads the Justice Department's gang unit....

According to Lanny Breuer, who leads the Justice Department's criminal division, an expert in capital punishment is also on the newly merged team. "There will be cases with respect to gangs at times where we will seek that ultimate punishment, where the facts and the crime are so egregious and deserving [of] it," Breuer says.

October 17, 2010 in Death Penalty Reforms, Offense Characteristics, Who Sentences? | Permalink | Comments (5) | TrackBack