October 30, 2010
Decorated Vietnam vet gets way below-guideline sentence for child porn
This notable local article from South Dakota, which is headlined "War vet sentenced 18 months for child porn," reports on another interesting and notable federal sentencing case involving a child porn downloader. Here are the fascinating details:
A decorated Vietnam veteran with no criminal history and only a vague memory of his crime will spend 18 months in a mental health facility for dabbling in child pornography.
The unique circumstances in the case of 65-year-old Truman Wages led U.S. District Judge Lawrence Piersol to deviate from federal sentencing guidelines -- and his own judicial philosophy -- by trimming what would have been a five-year prison sentence to 18 months in a secure mental institution. "Frankly, the public needs to see that if you engage in child pornography, you're going to go to prison," Piersol said at the Parkston man's sentencing on Friday.
The judge agreed, nonetheless, with the assessments of Wages by defense lawyer Tim Langley and forensic psychiatrist Ricardo Ascano. Namely, that the near-suicidal veteran with a deteriorated memory does not represent a threat to the community. "This is not a pedophile," Langley said. "This is a person who can't even give a reasonably coherent account of what he was trying to do when he stumbled onto these things."
What investigators found during a 2008 search of Wages' home and property were nearly 100 CDs with some pornography on them. Among them were three discs containing child pornography. Prosecutor Jeff Clapper said that one of the 10 videos contained footage of an adult male engaging in sex acts with a 1-year-old child. "He didn't just view it on the Internet, he downloaded it, saved it and put it on a disc," Clapper said.
Ascano's psychiatric profile showed Wages to prefer adult women overwhelmingly as sexual partners, evidenced by a collection of adult pornography and a wandering sexual history that includes more than 200 female partners. Part of each monthly disabled veteran's check goes to support some of his children in Mexico, Langley said.
When asked to explain his foray into child pornography, Wages said he had probably stumbled across the material while searching for an herbal cure for erectile dysfunction.
Wages earned a Silver Star, a Bronze Star and a Purple Heart for his service in Vietnam, Ascano said, and has suffered from post-traumatic stress disorder since. Veteran's Affairs clinics in California and Arizona diagnosed him with depression, anxiety and schizoid personality disorder, Ascano said, and he attempted suicide in 1993. The deterioration in his memory stems from a long-term refusal to take medications for his Type II diabetes and hypertension. He refuses, the doctor says, because he is "parasuicidal."...
Clapper recommended a higher sentence than Piersol ultimately issued, but said the serious crime came about in a "highly unusual" manner. Wages' use of pornography increased with his age, Clapper said, alongside his self-imposed isolation and depression. "We've got a person who has lived a hypersexual life, and later in life he isn't able to live that way anymore," Clapper said.
October 29, 2010
Noting the impact of Graham for all juve LWOP sentences
Today's Wall Street Journal take note of the echoes of the Supreme Court's ruling last Term in Graham v. Florida via this effective article, headlined "Judges Forced to Revisit Juveniles' Life Sentences." Here are excerpts:
Judges are grappling with whether it is ever proper to sentence a juvenile to life in prison without parole in light of a Supreme Court decision that such a punishment for non-murderers is cruel and unusual....
Since the decision, state courts have been reducing the sentences of prisoners covered by the ruling. An Iowa judge last month decided that Jason Means, 34 years old, who was serving life without parole for a kidnapping committed when he was 17, was eligible for parole.
Approximately 150 inmates are automatically eligible for lighter sentences, according to attorneys. But the impact could be broader still as the ruling has emboldened attorneys nationwide to push for shorter sentences for juveniles serving life sentences for murders, a larger inmate population.
Roughly 2,500 inmates are serving life without parole for crimes committed as juveniles, according to one 2009 survey by Human Rights Watch, which opposes such sentences. Forty-four states allow life without parole for juvenile offenders, generally defined as being under 18 when they committed their crimes, while six states bar such sentences. The vast majority were convicted for homicides, so they don't automatically qualify for resentencing under Graham, according to attorneys.
For example, Joseph Ligon, 73, a Pennsylvania inmate who has been in prison about 57 years, is challenging the life-without-parole sentence he received for his role in two murders committed when he was 15. Mr. Ligon "has learned and grown," said his attorney Bradley Bridge. "The child who went to prison in 1953 no longer exists."
Mr. Ligon's appeal is likely to be one of hundreds of cases testing the reach of the Supreme Court ruling. Last week, the Missouri Supreme Court heard arguments in a case that contends that Graham should apply to the case of an inmate sentenced to life without parole for killing a police officer at the age of 15....
Prosecutors say a relatively small number of juveniles receive life without parole, and there should be little leniency. "There are millions of young kids who do not commit outrageous crimes," said Scott Burns, the head of the National District Attorneys Association. "To say we can excuse a small percentage who do just because their frontal lobe hasn't developed is not persuasive."
Defense lawyers and juvenile-justice advocates, who plan to test the reach of the Supreme Court ruling in cases across the country, concede that it will be difficult to persuade judges to significantly reduce life sentences in non-homicide cases, let alone to offer sentencing relief in murder cases.
Indeed, courts in Alabama and Missouri have already declined to extend the Supreme Court ruling to murder cases involving juveniles.
On Monday, a state judge in Michigan handed down a life-without-parole sentence to Dakotah Eliason, 15, who was convicted of murdering his step-grandfather earlier this year. The defendant, who was 14 at the time of the murder, had suffered recent traumas, including the deaths of his cousin, friend and dog, according to his lawyer, Lanny Fisher.
"Pot and the GOP: Is the party of ‘Just Say No’ morphing into the party of ‘Just Say Grow’?"
The title of this post is the headline of this notable and effective new piece in Newsweek. Here are excerpts:
You’d expect aging flower children to fight for the right to get high. But aging conservatives? As the ideals of the Tea Party’s most vocal libertarians infiltrate the Republican ranks, and state and federal officials slash budgets even as they pump cash into an expensive war on drugs, some conservatives are making the case for legalizing marijuana. It isn’t Nancy Pelosi who’s speaking out in favor of legalized pot — she’s been careful not to take a position on Prop 19 — but rather her Republican challenger in California, John Dennis. And in Massachusetts, Barney Frank’s Tea Party–backed Republican opponent, Sean Bielat, has said he leans libertarian on the issue, and it hasn’t hurt his race against the longtime congressman, who strongly supports decriminalization of pot. “As you see the liberty wing of the Republican Party grow, you’ll see more support for legalization,” says Dennis, who drew cheers during a campaign stop recently at the International Cannabis and Hemp Expo in San Francisco, where his staff altered his campaign sign to sport Rastafarian colors and a pot leaf. Republican power broker Grover Norquist, president of Americans for Tax Reform, points out that legalization can make sense from a conservative perspective because it touches on issues of national security and fiscal prudence. “First, there is the mess that is Mexico. Narcoterrorism is made possible by our drug prohibition in the U.S. Then there is the cost of incarceration,” he says. Gary Johnson, the Republican former governor of New Mexico and a putative presidential candidate for 2012, says he believes that “Proposition 19 has the opportunity to be the domino that could bring about rational drug policy nationwide.”
Pundits like Fox News’s Glenn Beck and former judge Andrew Napolitano have also joined in the debate, on the pro-legalization side. “You know what, I think it’s about time we legalize marijuana. Hear me out for a second…” Beck told viewers in April. “We have to make a choice in this country. We have to either put people who are smoking marijuana behind bars, or we legalize it. But this little game we’re playing in the middle is not helping us, is not helping Mexico, and is causing massive violence on our southern border.” Even Sarah Palin, who’s opposed to legalization, has called pot a relatively “minimal problem,” telling Fox Business Network this summer, “I think we need to prioritize our law-enforcement efforts. And if somebody’s gonna smoke a joint in their house and not do anybody else harm, then perhaps there are other things our cops should be looking at to engage in and try to clean up some of the other problems that we have in society.” (Palin has copped to trying pot during the time it was decriminalized in Alaska, but said she didn’t like it.)
Legalization may not carry the day in California: in a recent poll by the Public Policy Institute of California, support has fallen to 44 percent in favor of Prop 19 from 52 percent in September. Yet Prop 19 has sparked a surprisingly sober national discussion lacking in the hyperbole that has long surrounded marijuana.
Some related posts on pot policy and politics:
- Green tea party: will Glenn Beck or Sarah Palin or other professed liberty lovers support ending pot prohibition in California?
- Making the conservative case for ending pot prohibition in California
- "Would Legalizing Marijuana Cut Law Enforcement Costs?"
- "Tea Party = Pot Party?"
- Might Sarah Palin's sensible points about pot get Tea Party types to push for sensible drug reforms?
- Why doesn't the new Liberty Central website say anything about mass incarceration or the drug war or any criminal justice issues?
- "Why Parents Should Support Legalizing Pot"
- Top House Republican complaining that Obama administration is not fighting drug war hard enough
- American democracy getting a contact high from pot prohibition debate
- New "Just Say Now" campaign suggests growing marijuana legalization coalition
- Thoughtful academic thoughts on ending marijuana prohibitions
- How can and should we assess the "success" of medical marijuana and pot prohibition reform efforts?
- "Legally Loaded: Marijuana Today -- Cocaine and Heroin Tomorrow?"
- Obama Adminstriation promising to prevent states from expanding individual liberty and free markets
Misguided poster child for New York Times to claim "No Justification" for the death penalty
The New York Times this morning has this notable editorial headlined "No Justification," which uses the latest kerfuffle over Arizona's execution of Jeffrey Landrigan earlier this week to assail the death penalty. Here is how the editorial begins:
Two years ago, when a splintered Supreme Court approved lethal injection as a means of execution in Baze v. Rees, Justice John Paul Stevens made a prophecy. Instead of ending the controversy, he said, the ruling would raise questions “about the justification for the death penalty itself.” Since then, evidence has continued to mount, showing the huge injustice of the death penalty — and the particular barbarism of this form of execution.
In the case of Jeffrey Landrigan, convicted of murder and executed by Arizona on Tuesday, the system failed him at almost every level, most disturbingly at the Supreme Court. In a 5-to-4 vote, the court’s conservative majority allowed the execution to proceed based on a stark misrepresentation.
Because Jeffrey Landrigan had his substantive appeals heard and decided by the Supreme Court back in 2007, and because he had 20 years (at Arizona taxpayers' expense) to pursue appeals of his 1990 death sentence, I found bothersome the assertion that the "system failed him at almost every level." I went back and reviewed the Supreme Court's ruling in his case, and these snippets especially stood out:
Jeffrey Landrigan was convicted in Oklahoma of second-degree murder in 1982. In 1986, while in custody for that murder, Landrigan repeatedly stabbed another inmate and was subsequently convicted of assault and battery with a deadly weapon. Three years later, Landrigan escaped from prison and murdered Chester Dean Dyer in Arizona....
[At the penalty phase for his Arizona murder, responding] to counsel’s statement implying that the prison stabbing involved self-defense because the assaulted inmate knew Landrigan’s first murder victim, Landrigan interrupted to clarify that the inmate was not acquainted with his first victim, but just “a guy I got in an argument with. I stabbed him 14 times. It was lucky he lived.”
To review, Landrigan was convicted of murder in 1982 and then, while being punished for that severe crime, he tried to murder a fellow inmate and then he escaped from prison and did murder an innocent man. Seems to me that Landrigan is a poster child for sound justifications for the death penalty. He was a mortal threat to fellow inmates when imprisoned and also a threat to escape and kill again. A punishment of life imprisonment would subject prisoners, prison guards and even outsiders to persistent mortal risks.
In short, for such a violent and dangerous multiple murderer like Landrigan, it is hard to know what punishment other than death would be effective or just. Any yet the New York Times editorial page is suggesting this case shows the death penalty has "no justification" and is an example of the "the huge injustice of the death penalty"?
I understand and respect those abolitionists who adopt the categorical moral view that the death penalty is never justified even for the most brutal and remorseless mass murderer. But, given that our democratic system of laws has not embraced that position in every state, it strike me as highly misguided for those with abolitionist views to hold up Landrigan's as an example of the failings of our system of capital punishment and the "the huge injustice of the death penalty."
Will white-collar offenders get special sentencing help from new guidelines on age?
The question in the title of this post is prompted by this Bloomberg story, which is headlined "White-Collar Criminals in US May Invoke Age to Seek Lighter Sentence." Here are excerpts:
Elderly people convicted of financial fraud and other federal crimes will be more likely to invoke their age in seeking lower prison terms due to a change in U.S. sentencing guidelines set to go into effect Nov. 1, a white-collar crime expert said.
The amendment states that age may be relevant in calculating sentencing ranges. The current language says age is “not ordinarily relevant.” Some high-profile defendants such as Adelphia Communications Corp.’s John Rigas and former Illinois Governor George Ryan were in their 70s and 80s when sentenced.
“These sentences can turn into death sentences for individuals who are older,” Jeff Ifrah, co-author of “Federal Sentencing for Business Crimes,” said in a phone interview. “You’ll start seeing defendants” ask for lower departures from the normal guideline “based on age in the appropriate circumstances.”
White-collar defendants tend to be older than those convicted of other federal crimes. Almost half of all defendants sentenced last year for tax offenses and 28.3 percent for money laundering were older than 50, the most of any age category in statistics compiled by the U.S. Sentencing Commission.
Defendants in 22 percent of larceny cases and 19.8 percent of fraud cases were older than 50, according to the commission, a Washington-based agency that advises the president and Congress on crime policy.
Last year, only 2.6 percent of defendants got a downward departure from the guideline range due to age, according to the commission....
“We were supportive of this particular amendment,” Mark P. Rankin, co-chairman of the sentencing committee at the National Association of Criminal Defense Lawyers, said in a phone interview. “Anything that broadens the scope of the district judge’s discretion is good for the sentencing process.” Rankin is a partner at Shutts & Bowen LLP in Tampa, Florida....
While the federal sentencing guidelines, in effect since 1987, have been advisory rather than mandatory since a 2005 U.S. Supreme Court ruling, statistics show that courts continue to adhere to them. Last year, 56.8 percent of defendants were sentenced within the guideline range and another 25.3 percent were sentenced below it at the government’s request, according to the sentencing commission.
October 28, 2010
Great new Vera Institute report on how states are trying to balance tight budget and public safety
I received via e-mail blast this afternoon this helpful heads-up about a helpful new report about state corrections practices:
A report released today by the Vera Institute of Justice’s Center on Sentencing and Corrections suggests that after decades of increases in corrections spending, states are trying something new. The Continuing Fiscal Crisis in Corrections: Setting a New Course is based on a two-part investigation that sought to gauge the current status of states’ corrections policies: Vera staff surveyed state officials about their planned corrections spending for fiscal year 2011 and reviewed states’ recent corrections-related legislative initiatives. The results show officials planning to spend less even as they initiate changes aimed at shoring up public safety.
According to the report, two factors are driving these developments. First, ongoing budget pressures are compelling officials to seek savings whenever safely possible. At the same time, states are drawing on decades of research and using identified policies and practices that can be counted on to yield positive results.
The Center on Sentencing and Corrections has also created an interactive online resource highlighting data from the new report. The page features a map and chart illustrating changes in individual states’ corrections appropriations from fiscal year 2010 to 2011, including funding sources.
Download the report.
View the interactive map and chart.
Interesting and notable federal clemency developments on two fronts
Thanks to the effective work by Josh Gerstein at Politico, everyone can catch up quickly on these two new and notable federal clemency stories:
Both of these stories are full of legal and political nuance, which I hope to find time to blog about later today after I finish teaching two classes and before I get lost in Game 2 of the World Series.
UPDATE: On my request, former US Pardon Attorney Margaret Colgate Love sent me this reaction via e-mail to these notable clemency developments:
"It is unfortunate that the Obama administration has evidently become captive to the mistaken idea that pardoning necessarily involves political as opposed to justice-based decisions. As a result, the federal pardon process has all but ceased to function, and pardons are expected only as holiday gift-giving. It is a shame because there are so many deserving individuals who have no other recourse, including many long-time legal residents with dated minor convictions who are threatened with deportation. In the past the pardon process has not particularly benefited from additional transparency, but sunshine may at least reveal where the hold-up is."
Why is Obama's DOJ, after urging Congress to "completely eliminate" any crack/powder disparity, now seeking to keep the 100-1 ratio in place as long as possible?
There are lots of notable and important aspects to the thoughtful new opinion by US District Judge D. Brock Hornby in US v. Douglas, No. 09-202-P-H (D. Maine Oct. 27, 2010) (available here), which concludes that a defendant guilty of committing a crack offense back in 2009 but "not yet sentenced on November 1, 2010, is to be sentenced under the amended Guidelines, and the Fair Sentencing Act's altered mandatory minimums apply to such a defendant as well." But in this post I want to spotlight and wonder aloud about a footnote from the opinion noting DOJ's current advocacy position on this important and consequential issue.
Specifically, after explaining that the government in Douglas was urging that the old crack mandatory minimums apply to "to all future prosecutions and sentencings based on pre-August 3, 2010, conduct," Judge Hornby drops this footnote:
At oral argument, I did inquire of the Assistant United States Attorney whether his argument was a matter of individual U.S. Attorney Office discretion or the position of the Department of Justice, and he replied that he understood it to be the policy of the Department of Justice.
I am very pleased that Judge Hornby asked this important question, and now very curious why President Obama's Department of Justice has adopted the advocacy policy that the unfair and now reformed old crack sentencing statute should and must be applied for as long as possible to as many defendants as possible. For a number of reasons, this policy/advocacy seems deeply misguided and troublesome:
First, as I sought to explained in this amicus letter I submitted in a pending case in NYC, I think a fair reading of congressional intent and statutory construction principles call for the FSA to apply to pending cases as soon as possible.
Second, given that there are debatable statutory claims here and that every defendant in every district court with a sentencing pending will press for immediate application of the FSA, the DOJ's current position ensures extensive, costly federal litigation for many months and will likely ensure disparate sentencing outcomes in different parts of the country for many years. If DOJ is really interested in consistent sentencing practices and outcomes, it could and should simply embrace the policy of having the FSA now apply to all not-yet-sentenced defendants.
Third, way back in April 2009, the official advocacy policy of the DOJ was to call upon Congress to "completely eliminate the sentencing disparity between crack and powder cocaine" (testimony here). Disappointingly, Congress only partially reduced the disparity; but, now even more disappointingly, DOJ now seems to want the old unjust 100-1 ratio to apply for a long as possible to as many defendants as possible.
I can imagine various reasons why federal prosecutors have adopted its worrisome position in these FSA pipeline case. But because DOJ is supposed to be a Department of Justice, not merely a Department of making the best arguments for federal prosecutors, I am hopeful that DOJ might before long consider changing course.
Nicholas Kristof urging that we "End the War on Pot"
One of the many (beneficial?) consequences of Proposition 19 being on the ballot in California is that it has enabled and seemingly encouraged major commentators to urge in major papers that we consider a whole new approach to marijuana laws and policies. Earlier this week, we had George Soros calling for pot legalization in the pages of the Wall Street Journal (noted here), and today we get this New York Times piece by Nicholas Kristof, which is headlined "End the War on Pot." Here are excerpts:
Our nearly century-long experiment in banning marijuana has failed as abysmally as Prohibition did, and California may now be pioneering a saner approach. Sure, there are risks if California legalizes pot. But our present drug policy has three catastrophic consequences.
First, it squanders billions of dollars that might be better used for education. California now spends more money on prisons than on higher education. It spends about $216,000 per year on each juvenile detainee, and just $8,000 on each child in the troubled Oakland public school system. Each year, some 750,000 Americans are arrested for possession of small amounts of marijuana. Is that really the optimal use of our police force?...
The second big problem with the drug war is that it has exacerbated poverty and devastated the family structure of African-Americans. Partly that’s because drug laws are enforced inequitably. Black and Latino men are much more likely than whites to be stopped and searched and, when drugs are found, prosecuted....
The third problem with our drug policy is that it creates crime and empowers gangs. “The only groups that benefit from continuing to keep marijuana illegal are the violent gangs and cartels that control its distribution and reap immense profits from it through the black market,” a group of current and former police officers, judges and prosecutors wrote last month in an open letter to voters in California.
I have no illusions about drugs. One of my childhood friends in Yamhill, Ore., pretty much squandered his life by dabbling with marijuana in ninth grade and then moving on to stronger stuff. And yes, there’s some risk that legalization would make such dabbling more common. But that hasn’t been a significant problem in Portugal, which decriminalized drug use in 2001....
One advantage of our federal system is that when we have a failed policy, we can grope for improvements by experimenting at the state level. I hope California will lead the way on Tuesday by legalizing marijuana.
Noting that the circuits are getting behind below-guideline kiddie porn downloading sentences
This morning's Legal Intelligencer has this new piece discussing the Third Circuit's important Grober ruling from earlier this week (discussed here). The piece is headlined "Appeals Courts Criticize Child Porn Sentencing Guidelines," and here is how it gets started:
As the sentencing guidelines for child pornography crimes have grown increasingly harsh, a strong trend has developed among federal judges to reject the proposed prison terms as draconian. Now two influential federal appellate courts -- the 2nd and 3rd Circuits -- have joined the trend and declared that the child pornography guidelines are seriously flawed, or at least that a trial judge wouldn't be wrong for thinking so.
One of the key flaws cited by many of the judges is that the harsher penalties were imposed directly by Congress, every time the guideline was amended, rather than the usual process in which the Sentencing Commission studies an issue and proposes changes that are then subject to congressional approval. Prosecutors have been fighting the trend by urging trial judges to follow the guidelines and sometimes by taking appeals from those who don't.
But a decision in May from the 2nd Circuit and another this week from the 3rd Circuit suggest that the Justice Department may be waging a losing battle, and that trial judges are now freer than ever to reject the child pornography guidelines in cases where the judge sees the suggested punishment as too harsh.
In United States v. Grober, the Justice Department urged the 3rd Circuit to reverse an extraordinary ruling by U.S. District Judge Katharine S. Hayden that said the proposed sentence of nearly 20 years for David Grober was "outrageously high." Hayden, who sits in New Jersey, set out to explore how the guidelines had gotten so harsh and ultimately held hearings over 12 days that led her to conclude that they were unworkable and unfair.
Among the flaws cited by Hayden were a series of "enhancements" that, in her view, would apply in almost every case, as well as a failure to distinguish between defendants whose crime involved nothing more than downloading images as opposed to those involved in producing, selling or trading in illegal images. Ultimately, Hayden issued a 46-page opinion that declared the guideline was not worthy of deference. Instead of imposing a term of 235 months, she imposed a term of 60 months.
Now the 3rd Circuit has voted 2-1 to uphold Hayden's ruling, strongly rejecting the Justice Department's argument that Hayden had abused her discretion.
October 27, 2010
"Sarah Palin E-Mail Hacker Seeks Probation, Feds Want 18 Months"
The title of this post is the headline of this Wired story about my favorite high-profile (and low-importance?) sentencing story. Here are excerpts:
David Kernell, the Tennessee student convicted of hacking into Sarah Palin’s personal e-mail account, has asked the court to forgo a prison sentence and give him probation for his crimes.
Kernell, 22, was convicted earlier this year of misdemeanor computer intrusion and a felony count of obstruction of justice. The jury found him not guilty of a wire-fraud charge and hung on a fourth charge for identity theft, after four days of deliberating.
The convictions carry a maximum sentence of 20 years in prison and a possible fine of up to $250,000. Federal sentencing guidelines recommend a sentence of between 15 and 21 months in prison. The government is seeking 18 months. Kernell, scheduled to be sentenced in Tennessee on Nov. 12, was found to have deleted evidence from his hard drive to thwart investigators, in the most serious charge.
In a motion filed with the court (.pdf) on Wednesday, his attorney asserted that although his client might have deleted evidence, this should be balanced against the fact that he didn’t destroy the computer entirely or get rid of it.
“The proof showed that Mr. Kernell very quickly took actions that resulted in the evidence being preserved,” defense attorney Wade Davies wrote. He also said that his client’s behavior was an “aberration” from his normal conduct and that the “public humiliation, trial and felony conviction” his client had endured were enough to deter him from future crimes. “General deterrence has been achieved in this case by educating the public that accessing another’s e-mail account is conduct that violates federal law,” Davies wrote.
In prior posts, I have suggested that some kind of creative shaming sanction or community service might be especially appropriate in this case --- e.g., it would seem be fitting for the defendant here to be ordered to create a YouTube video explaining the harms of hacking and perhaps a "beware of hacker" pop-up on David Kernell's social media pages.
Especially if tonight's great World Series Game 1 match-up does not live up to the hype, perhaps readers can suggest some other creative and tech-savvy sentencing possibilities for this case in the comments.
Some related posts:
- Lots of interesting questions in upcoming sentencing proceeding for hacker of Sarah Palin's e-mail
- What sentence might victim Sarah Palin urge for her hacker?
New USDC opinion applying new FSA law to not-yet-sentenced defendants
A helpful lawyer altered me to a thoughtful new opinion by US District Judge D. Brock Hornby in US v. Douglas, No. 09-202-P-H (D. Maine Oct. 27, 2010) (available here), which concludes that a defendant guilty of committing a crack offense back in 2009 but "not yet sentenced on November 1, 2010, is to be sentenced under the amended Guidelines, and the Fair Sentencing Act‘s altered mandatory minimums apply to such a defendant as well." Here is Douglas opinion's final substantive paragraph (and footnote) explaining how Judge Hornby reaches this conclusion:
I conclude, based upon the context of the Act, its title, its preamble, the emergency authority afforded to the Commission, and the Sentencing Reform Act of 1984, that Congress did not want federal judges to continue to impose harsher mandatory sentences after enactment merely because the criminal conduct occurred before enactment. Yes, the 1871 Saving Clause deserves attention, but it does not command special attention. Generally, as Great Northern recognized, an earlier Congress cannot bind a later Congress. If it is a stretch to say that the Fair Sentencing Act of 2010 "expressly provide[s]" that the previous mandatory minimums are vacated for future sentences, Congress certainly made clear the urgency of change and its concern for fairness; and it gave no signal that it was distinguishing the emergency Guideline amendments that it expressly mandated from the statutory sentencing floors from which they directly flow. In the words of the Supreme Court, it is either a "necessary implication" or a "fair implication" that, although retroactivity to those previously imprisoned might not be contemplated, the Fair Sentencing Act of 2010 permits no further federal crack sentencings that are not "fair."[FN57]
[FN57] Indeed, I would find it gravely disquieting to apply hereafter a sentencing penalty that Congress has declared to be unfair. One can imagine the ramifications of a contrary decision. Defendants would seek to negotiate with federal prosecutors to waive indictment and plead to an information that charges conduct that extends after August 3, 2010, so that they could be sentenced under the new Act. That charging option would be formidable leverage for prosecutors until the statute of limitations has run on criminal conduct that occurred before August 3, 2010. And that discretion would be lodged with prosecutors where its exercise is invisible, rather than with judges whose decisions must be explained upon the public record. That operation of the Fair Sentencing Act would belie its title, at least for the next few years.
October 27, 2010 in Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, New USSC crack guidelines and report, Who Sentences? | Permalink | Comments (1) | TrackBack
Another notable (and disparate) child porn downloading restitution award
Regular readers are familiar with the varied and disparate federal district court rulings in response to a victim of child abuse/pornography seeking restitution from criminal defendant found guilty of downloading her picture. Thanks to a reader sending me this news report from Indiana, which is headlined "Valparaiso man ordered to pay $533,000 to child porn victim," we have another example of how a district court is dealing with this challenging issue. Here are the basics:
A Valparaiso man has been ordered to pay more than $500,000 in restitution to one of the victims identified in child pornography he possessed. Whether any of that money will ever be paid is unlikely, defense attorney Michael Bosch said.
U.S. District Judge Joseph Van Bokkelen said in a ruling issued Tuesday that Nathanial Josiah Worden has to pay the victim, identified in a court hearing as "Amy," $533,244 for counseling she is expected to need throughout her life. The amount was just a little less than the $544,000 U.S. prosecutors had asked for and much higher than the $3,000 that Bosch, Worden's lawyer, had argued for.
Van Bokkelen issued the order a day after a restitution hearing in U.S. District Court in Hammond, at which a psychologist testified how Amy had been victimized as young as age 4 by her uncle. The psychologist, Joyanna Silberg, said the victim now suffers from paranoia and fear of people seeing the child pornography images of her. She said those fears keep her from living her life, including from getting help, because she is so embarrassed.
Bosch had argued that even though the victim already has about $143,000 in restitution payments made from other defendants, she hasn't attended weekly counseling the past two years. Therefore, he said, officials couldn't say she would need so much more money from Worden to pay for her counseling.
Van Bokkelen said in his ruling that Worden had agreed in his plea deal to pay full restitution. He added that Worden could have been on the hook for much more -- $3.3 million -- if Amy had asked for full damages, including emotional distress.
Bosch said Tuesday that the matter is mostly academic because his client has no assets and is just beginning to serve a 35-year sentence for advertising child pornography. Worden, who is 31, would be in his 60s when released from prison. "I think the likelihood of him paying anything is slim to none," Bosch said.
Some related recent federal child porn restitution posts:
"Elderly, Ill Sex Offender Sues Perry Over Monitor"
The title of this post is the headline of this interesting and effective new piece from the Texas Tribune reporting on interesting technocorrections developments and litigation in the Lone Star State. Here are the particulars:
Sixty-one-year-old Marvin Brown has had three mini-strokes in the last two months. He has diabetes, stage-four renal disease and congestive heart failure. On good days, he walks with a cane. Other times, he gets around with a walker or an electric wheelchair.
But according to Gov. Rick Perry, Brown is among the most dangerous sex offenders in Texas. Perry has ordered that Brown and other registered sex offenders who were previously released from continuous monitoring must now be monitored again with ankle bracelets. Brown, who was convicted in 1985 of sexually assaulting a 15-year-old boy and of indecency with a 16-year-old boy, says forcing him to wear the ankle monitor not only puts his fragile health at risk — it's also a violation of his civil rights. On Tuesday, he filed a lawsuit asking the federal courts to keep the state from putting him back on the monitor. “They can’t give you freedom and then take it away,” Brown says.
Last month, Perry announced a raft of new measures to crack down on what he called “the most dangerous sex offenders.” Among other things, Perry said he would designate $1.7 million in federal grant money to help the Texas Department of Criminal Justice use technology to monitor high-risk sex offenders on parole. “These initiatives will provide greater protections to our citizens by taking our efforts in dealing with sex offenders up yet another notch,” Perry said in a press release.
Since that announcement, 153 parolees have been returned to active electronic monitoring, says Michelle Lyons, a criminal justice department spokeswoman. All the parolees who have received ankle bracelets, she says, were previously on a passive monitoring system that logged their daily whereabouts and created a report for parole officers. Ankle bracelets, she says, allow for real-time monitoring to ensure sex offenders aren’t going near playgrounds or other areas where children congregate. With the grant money, the department could put ankle bracelets on as many as 600 high-risk sex offenders.
Brown found out about Perry’s new crackdown efforts a couple of weeks ago, when his parole offic er told him he was on the list of sex offenders to be put back on active monitoring. Brown served 14 years of his 40-year sentence in the criminal justice department before he was paroled in 1999 and placed on intensive supervision, which required him to wear an ankle bracelet with a GPS monitor. In 2007, the Board of Pardons and Paroles took Brown off intensive supervision and removed the monitor. With the monitor off, Brown says, he could lead a somewhat normal life — shopping, making friends, eating out with family and attending church without an ominous-looking briefcase that carried a beeping device.
He could also deal more easily with his health problems, going to the doctor’s office and taking emergency trips to the hospital when necessary. Brown, who lives alone, had a life alert-like system installed at his house so that he could use the telephone to update nurses at the hospital with his vital statistics and so that he could get quick help in case he had another stroke or heart attack and couldn’t reach the phone. The ankle bracelet, he says, will interfere with the system, and he worries that without it he could die. “If you have a stroke or a heart attack and nobody finds you until the next day, it’s too late,” he says...
In the lawsuit, he alleges that the state is violating his constitutional right to due process by forcing him back on the ankle monitor without justification or a legal hearing on the matter. “It’s a public embarrassment,” Brown says. “I don’t know how I’d be able to attend church.”...
Attorney Bill Habern has defended parolees and sex offenders like Brown for decades. He says he sympathizes with Brown but believes his lawsuit is probably doomed. The U.S. 5th Circuit Court of Appeals — in a case Habern defended and is appealing — ruled that once a person is a convicted sex offender, the state can impose conditions it sees fit to protect the public....
Katherine Cesinger, a spokeswoman for the governor, says the move to increase sex offender monitoring was not politically motivated but was intended to provide greater public protection from sexual predators. Lyons, the criminal justice department spokeswoman, says she can't comment on pending litigation but maintains that the ankle monitors are designed for those who are considered at high risk for reoffending. “I can't see how having more supervision wouldn’t add to public safety,” she says.
With SCOTUS blessing and foreign drugs, Arizona completes lethal injection execution
As detailed in this CNN story, which is headlined "Arizona convicted killer's last words: 'Boomer Sooner'," the state of Arizona got to conclude a few furious days of litigation with a long-planned lethal injection execution. Here are the details:
The state of Arizona executed convicted killer Jeffrey Landrigan late Tuesday after the U.S. Supreme Court cleared the way for the lethal injection, a corrections official said. The execution was carried out at 10:26 p.m. (12:26 a.m. ET), said Barrett Marson, a spokesman for the Arizona Department of Corrections.
"I'd like to say 'thank you' to my family for being here and all of my friends," were Landrigan's final words, according to Marson. He concluded with "Boomer Sooner," a cheer often used by University of Oklahoma fans....
The way for the execution was cleared after a majority of Supreme Court justices moved to vacate a federal judge's order that had temporarily stopped the execution scheduled for earlier in the day. In a 5-4 decision, the court overturned two lower court rulings.
Earlier Tuesday, the 9th U.S. Circuit Court of Appeals had sided with U.S. District Court Judge Roslyn Silver, who blocked Landrigan's execution 18 hours before it was set to happen at noon MT Tuesday (2 p.m. ET)....
But the U.S. Supreme Court ruling vacated the lower court order, saying "there is no evidence in the record to suggest that the drug obtained from a foreign source is unsafe."... "There was no showing that the drug was unlawfully obtained, nor was there an offer of proof to that effect," the Supreme Court ruling said.
The decision to vacate the order was supported by Chief Justice John Roberts and Justices Samuel Alito, Anthony Kennedy, Antonin Scalia and Clarence Thomas. Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor sided with Silver and would not have vacated the ruling.
In 1989, Landrigan escaped from an Oklahoma prison, where he was serving time for second-degree murder. He was convicted of strangling Chester Dean Dyer in Arizona a year later during an armed burglary, and a trial judge sentenced him to death.
The one-page order in this case can be found at this link.
October 26, 2010
"Prop 19: The Day After"
The title of this post is the headline of this interesting new piece of original reporting from The Crime Report about what we can and should expect on the pot prohibition front after next week's vote on California's proposition 19. Here are some notable excerpts:
In an email to The Crime Report Ethan Nadelmann, founder and executive director of the Drug Policy Alliance, indicated that pro-decriminalization groups are ready for a long national fight. “Win or lose on Prop 19, the plan is the same,” writes Nadelmann, “which is to put the issue on the ballot wherever polls show a reasonable majority of the electorate in a state in favor, in those states that have the initiative process, and where elected officials are unwilling to move forward ... economics, demographics and principle are all on our side.”
Indeed, if Prop 19 passes, Representative Peter Buckley of Oregon told The Crime Report he will introduce a similar measure in his state. And, according to a recent Wall Street Journal story, Democrats across the country are watching this race closely for just that reason: if marijuana gets Democrats to the polls (the same way gay marriage drives Republicans to vote), the party might support similar initiatives in 2012.
That may be why Holder’s letter made no specific promises of a lawsuit. In fact, in contrast to the passionate tone of the original DEA heads’ letter, it was a markedly tepid response....
In some ways, California has already blurred the national template over drug policy. In 1996, the state approved Proposition 215, which legalized pot for medical use. In the nearly 15 years since, dispensaries have either thrived or been shuttered depending upon their locations. In Oakland, where dispensaries blend in among office buildings, the citizens even levied the nation’s first tax on the weed in 2009 , and the city council recently approved a measure allowing for industrial cultivation of marijuana.
And regardless of the outcome of Prop 19, California has already moved the goalposts on marijuana policy. On September 30, Gov. Arnold Schwarzenegger signed a new law downgrading possession of less than an ounce of marijuana from a misdemeanor to a simple infraction, which, like a traffic ticket, carries only a $100 fine.
Some have argued that the move by the governor, who opposes Prop 19, erases the urgent need for legalization. However, supporters claim decriminalization would save millions by allowing police to concentrate on more serious crimes. But police say they aren’t really spending resources on petty pot offenses anyway....
Much ... depends on who wins the race for attorney general. Both candidates, Steve Cooley and Kamala Harris are officially opposed to Prop 19. In a recent debate, Harris was non-committal when asked to give details about her response should the measure pass, but Cooley was clear, saying he believed it was “unconstitutional” and “preempted by federal law.”
A few related posts on pot policy and politics:
- Obama Adminstriation promising to prevent states from expanding individual liberty and free markets
- "Would Legalizing Marijuana Cut Law Enforcement Costs?"
- Top House Republican complaining that Obama administration is not fighting drug war hard enough
- American democracy getting a contact high from pot prohibition debate
- New "Just Say Now" campaign suggests growing marijuana legalization coalition
- Thoughtful academic thoughts on ending marijuana prohibitions
- How can and should we assess the "success" of medical marijuana and pot prohibition reform efforts?
California Supreme Court upholds dismissal of criminal cases due to lack of judges
The dysfunctionality of California's criminal justice system never ceases to surprise me, and the latest data point in this ever on-going story is reflected in this new Los Angeles Times article. The piece is headlined "State Supreme Court upholds Riverside County's dismissal of criminal cases," and here are excerpts:
A shortage of judges in Riverside County has led to the dismissal of hundreds of criminal cases, a practice the California Supreme Court upheld on Monday and blamed on the state's budget woes. In unanimous ruling, the state high court said Riverside County's dearth of judges represented a "chronic" problem that was the fault of the budget-strapped state.
The case before the court involved an accused burglar, one of 18 criminal defendants whose cases were dismissed on the same day after they invoked their rights to speedy trials. Two of the 18 were charged with felonies. Riverside County Deputy Public Defender William A. Meronek said Monday's ruling also would end prosecution for as many as 300 other defendants whose cases were on appeal after being dismissed for lack of judges.
But Riverside County Deputy Dist. Atty. Alan Tate said his office would fight to prosecute the most serious of the dismissed cases. "There are quite a few very serious allegations, some involving dead bodies — vehicular manslaughter, assault on police officer, assault with deadly weapon, crimes against children," said Tate, who argued the case before the Supreme Court.
The judiciary has long insisted that California needs more judges, but nowhere has the shortage been more dramatic than in Riverside County.... Riverside prosecutors challenged the dismissals, arguing that the court should have made every judge in the courthouse, including those in juvenile, family law and probate, available for the cases. But the state high court said Riverside County already was giving criminal cases priority over civil disputes, and the court was not required to halt proceedings in civil cases to make room for criminal matters. An absolute rule giving precedence to all criminal cases could force a court "to abandon entirely its responsibility to provide for the fair administration of civil as well as criminal matters," George wrote....
A 2004 study by the Judicial Council, which George heads, said 350 new judgeships were needed in the state. Since then, the Legislature has authorized 100 new judicial positions. In a 2008 report to the Legislature, the Judicial Council ranked Riverside County the most in need of judges. A task force the year before had found that 25% of jail inmates in Riverside had been awaiting trial for more than one year, 177 for more than two years, 32 for more than four years and one for more than eight years.
The full ruling in this case is available at this link.
Michigan trial court rejects constitutional attack on mandatory LWOP for juve killer
Thanks to this post at TalkLeft (which is worth a full read), everyone can find out the outcome and read the opinion in the Michigan case previously blogged about here in which a sentencing judge was required to impose a life without parole sentence on a juvenile offender who, at age 14, murdered his grandfather and was tried as an adult for the crime.
This local press report, which is headlined "15-year-old Dakotah Eliason sentenced to life without parole," provides more details on the case and a video of the defendant's statement at sentencing. And available here is the trial court's 14-page opinion rejecting constitutional and international law attacks on the sentence.
Prior related post:
Split Third Circuit affirms way below-guideline sentence in major(?) child porn ruling
A split Third Circuit panel has a long and dynamic set of opinion in a federal child porn sentencing case in which I was actually called as an expert witness at sentencing. The litigation and ruling in US v. Grober, No. 09-1318 (3d Cir. Oct. 26, 2010) (available here), merits extended discussion, but for now I will quote for the start of the majority opinion and the end of the dissent. First, the start of the majority opinion:
It is an unassailable proposition that “[c]hild pornography harms and debases the most defenseless of our citizens.” United States v. Williams, 553 U.S. 285, 307 (2008). We believe that, and the District Court believed that. Nonetheless, the Court was deeply concerned about the sentence the government said the Court should impose on defendant David Grober under the child pornography Guidelines. It recognized, on the one hand, the tension between a mechanical application of those Guidelines and the “outrageously high” sentence –- indeed, the “truly remarkable punishment” -– of 235-293 months of imprisonment they advised, and, on the other, a fair and reasonable sentence that does justice. Determined to take a long and hard look at the child pornography Guidelines in an effort to understand why Congress and the Sentencing Commission did what they did and whether it made sense both as an objective matter and as to the defendant, the Court embarked on a careful study of how the Guidelines range urged on it by the government came to be. It took evidence over twelve days, heard extensive oral argument and considered extensive written submissions, and rendered a lengthy oral opinion at sentencing and a forty-six page written opinion thereafter explaining in great detail how it arrived at what it believed to be the correct sentence for this defendant. All of this is to be much admired.
There is a flip side, however, when a district court devotes such an extraordinary amount of time and attention to an issue so clearly troubling it and so freely expresses its concerns on the record, reaching out for whatever might assist it in assuaging those concerns. The flip side is this: in the unusual case, such as this, in which a district court arguably does too much rather than too little, there is much more grist for the mill, as here the government points to everything the District Court did and did not do and everything it should and should not have done. After this microscopic examination –- but without ever challenging the substantive reasonableness of the ultimate sentence imposed –- the government has found what it describes as procedural error. We will affirm.
And here is the end of this dissent:
As I noted at the outset, the District Court labored mightily to impose a just sentence upon David Grober. That effort was animated by a candid fear that Congress’s zeal to address the proliferation of child pornography has resulted in penalties grossly disproportionate to the culpability attendant to this type of crime. Even accepting that premise, it is still wrong for a sentencing court to: (1) categorically reject the validity of a Guideline by impugning generally the plea bargaining system; (2) punish a party for failing to present “evidence” it never should have presented in the first place; (3) mischaracterize a defendant’s crimes of conviction; and (4) use a categorical rejection of a Guideline as a proxy for ignoring some of the relevant § 3553(a) factors. Because each of these errors is manifest on this record, I would vacate Grober’s judgment of sentence and remand for a new sentencing hearing.
First-degree felony murder, sentencing and plea bargaining possibilities for the "Hiccup Girl"
I am teaching felony murder today in my 1L Criminal law class, and a high-profile new case has conveniently come to the fore to spotlight the issues that the traditional felony murder doctrine presents. I refer, of course, to the case of the (in)famous "Hiccup Girl" who is one of three individuals charged with first-degree murder in Florida based on her role as "bait" in a robbery scheme gone bad.
It seems few facts are in dispute in the case against Jennifer Mee, who became famous at age 15 because she was afflicted with never-ending hiccups. Now 19 and mixed up with a bad crowd, Mee helped Lamont Newton and Laron Raiford lure Shannon Griffin to an empty house to be robbed. Here is how the story linked above describes the crime and Mee's involvement:
Griffin met Mee online just a week before his death, police said. They arranged to meet Saturday night at 511 Seventh St. N. It was a trap. The three plotted to lure Griffin to the empty home and rob him, police said.
Griffin pulled up about 10 p.m. Mee led him to the back, where police said Newton and Raiford tried to rob him. Mee kept on walking, but seconds later gunshots rang out. Griffin struggled with the men, police said, and was shot three times in the chest and once in the shoulder with a .38-caliber revolver.
No one reported the gunshots. Police found Griffin when a caller reported a sleeping transient about 11 p.m. Saturday. Police found the gun and shoes left behind by a suspect. Griffin had less than $60 on him when he was killed.
Because of Florida's murder statutes and its sentencing rules, Mee and her co-defendants all would appear to be guilty of first-degree murder for which the only available punishments are death and life without parole.
I will use the "Hiccup Girl" case to highlight common arguments against broad felony murder provisions (e.g., that it treats too harshly a defendant with little or no bad mens reaconcerning causing another's death and may not be an effective was to deter underlying felonies). But the case has me now wondering whether and how first-degree murder cases such as this one can and should get resolved via plea bargains.
As a technical matter, the only form of homicide which the "Hiccup Girl" can be charged with is first-degree murder. I do not think an honest prosecutor and/or judge could or should allow Jennifer Mee to plead to a lesser homicide charge. I suppose a prosecutor and/or judge can (and likely will?) allow Mee to plead guilty only to robbery charges and simply not bring any homicide charges. But would this be truly a just outcome? Would such a plea deal, in essence, be a form prosecutorial nullification given that the Florida legislature apparently has decided that the Jennifer Mee's of the world out br be facing first-degree murder for which the only available punishments are death and life without parole?
George Soros makes pitch for legalizing marijuana
Today's Wall Street Journal includes this notable opinion piece by billionaire George Soros, which is headlined "Why I Support Legal Marijuana: We should invest in effective education rather than ineffective arrest and incarceration." Here is how it starts and ends:
Our marijuana laws are clearly doing more harm than good. The criminalization of marijuana did not prevent marijuana from becoming the most widely used illegal substance in the United States and many other countries. But it did result in extensive costs and negative consequences.
Law enforcement agencies today spend many billions of taxpayer dollars annually trying to enforce this unenforceable prohibition. The roughly 750,000 arrests they make each year for possession of small amounts of marijuana represent more than 40% of all drug arrests.
Regulating and taxing marijuana would simultaneously save taxpayers billions of dollars in enforcement and incarceration costs, while providing many billions of dollars in revenue annually. It also would reduce the crime, violence and corruption associated with drug markets, and the violations of civil liberties and human rights that occur when large numbers of otherwise law-abiding citizens are subject to arrest. Police could focus on serious crime instead.... Like many parents and grandparents, I am worried about young people getting into trouble with marijuana and other drugs. The best solution, however, is honest and effective drug education. One survey after another indicates that teenagers have better access than most adults to marijuana—and often other drugs as well—and find it easier to buy marijuana than alcohol. Legalizing marijuana may make it easier for adults to buy marijuana, but it can hardly make it any more accessible to young people. I'd much rather invest in effective education than ineffective arrest and incarceration.
California's Proposition 19, which would legalize the recreational use and small-scale cultivation of marijuana, wouldn't solve all the problems connected with the drug. But it would represent a major step forward, and its deficiencies can be corrected on the basis of experience. Just as the process of repealing national alcohol prohibition began with individual states repealing their own prohibition laws, so individual states must now take the initiative with respect to repealing marijuana prohibition laws. And just as California provided national leadership in 1996 by becoming the first state to legalize the medical use of marijuana, so it has an opportunity once again to lead the nation.
In many respects, of course, Proposition 19 already is a winner no matter what happens on Election Day. The mere fact of its being on the ballot has elevated and legitimized public discourse about marijuana and marijuana policy in ways I could not have imagined a year ago.
These are the reasons I have decided to support Proposition 19 and invite others to do so.
Relatedly, this Los Angeles Times piece, which is headlined "Money bolsters both sides of Prop. 19 debate," details that Soros is putting money in to pro-Prop 19 ads, while the Chamber of Commerce is putting money into anti-Prop 19 ads.
October 25, 2010
Federal district judge blocks planned Arizona execution because of drug mystery
As detailed in this new piece from the Arizona Republic, a "federal judge today blocked Tuesday's planned execution of convicted killer Jeffrey Landrigan until Landrigan's attorneys and the court have the chance to evaluate the drugs that Arizona has obtained to carry out the execution by lethal injection." Here are more the the particulars:
In a harshly worded ruling that refers to the state as "obstructive," U.S. District Court Judge Roslyn O. Silver issued a temporary restraining order stopping the execution until further notice. Silver also ordered the Arizona Department of Corrections and the Arizona Attorney General's Office to immediately turn over information that she requested Saturday night about the drugs.
Arizona Attorney General Terry Goddard told The Arizona Republic that he will appeal the restraining order to the U.S. Court of Appeals for the 9th Circuit to try to carry out the execution as scheduled. "These are very much last-minute scrambling appeals," he said.
At issue is the origin of one of the drugs used in the lethal injection procedure, sodium thiopental, a barbiturate that renders the condemned person unconscious so that he or she cannot feel the suffocation and pain induced by the second and third drugs.
Thiopental is in short supply nationwide, and executions in other states have been postponed because of its unavailability.
Landrigan's attorneys have been questioning the state on where it would obtain the drug since Landrigan's execution was scheduled in late September. The state obtained the drug on Sept. 30, but has refused to say how or where, referring to a state law that protects the identities of executioners and all people having to do with executions.
When the state Supreme Court refused to stay the execution, Landrigan's attorneys took it to federal court. Silver did not accept the state's argument, and ordered that all information about the drug be turned over immediately to Landrigan's attorneys.
UPDATE: Early on Tuesday morning, a Ninth Circuit panel upheld the district court's stay via this opinion. And this CNN article reports that Arizona has now brought this matter to the U.S. Supreme Court.
Remarkable opinion with postponement of resentencing in notorious Irey case
Regular readers will likely recall the Irey case, in which a split Eleventh Circuit panel initially affirmed, but thereafter decided en banc to reverse, a lengthy (but still well below-guideline) sentence given to a middle-aged man for what all agree was an "utterly gruesome" sex offense. A helpful reader today sent me a copy of the latest Irey opinion and order entered on Friday by U.S. District Judge Gregory Presnell. This opinion, which represents just the latest remarkable chapter in a remarkable case, can be downloaded below. Here is the opinion's introduction and conclusion:
This matter comes before the Court on the Unopposed Motion for Continuance of Resentencing Hearing Pending Review in United States Supreme Court (Doc. 80). As the motion’s title suggests, the parties seek to have this Court delay its resentencing of the Defendant, William Irey (“Irey”), on the chance that the Supreme Court will grant his petition for writ of certiorari, due to be filed on October 27, 2010. As things now stand, this Court is obligated by the July 29, 2010 decision of the United States Court of Appeals for the Eleventh Circuit (henceforth, the “July 29 Order”) to impose a 30-year sentence on Irey. Given that Irey is in the early stages of serving the 17-and-a-half-year sentence originally imposed by this court, there is no pressing need to impose the longer sentence — a fact apparently recognized by the Government, which does not oppose the motion. For these reasons, the motion will be granted, and the resentencing will be continued.
Under normal circumstances, that would be the end of the matter. But these are not normal circumstances. The July 29 Order raises a host of important issues, a fact recognized both by the Defendant in the instant motion and by the appellate court in the order itself. The pendency of the petition for a writ of certiorari provides the Court with a rare opportunity to respond to certain aspects of the appellate decision, prior to its possible review by the Supreme Court, with information that only the undersigned possesses. In addition, the July 29 Order has certain implications that affect the courts that are tasked with the imposition of criminal sentences — implications that might not be apparent to the parties themselves. The Court believes that a discussion of these points may assist the Supreme Court in determining whether the petition ought to be granted.
It is for these reasons, and not out of any disrespect for the Circuit Court’s authority to reverse the sentence I imposed, that I will take this opportunity to respond to certain portions of the July 29 Order....
I normally conclude the sentencing process by coming back to a consideration of the need for the sentence imposed to promote respect for the law and to provide just punishment for the offense. 18 U.S.C. § 3553(a)(2)(A). These are subjective factors that overlay the other statutory considerations. As I said at the sentencing, “I just do the best I can under the circumstances. It comes down to my view of what promotes respect for the law and provides just punishment. And here, as indicated, I think that a thirty year sentence . . . is greater than necessary to accomplish the statutory objectives.” (Tr. at 61).
The Circuit Court acknowledged that I properly calculated the guideline score, committed no procedural error, and gave thorough and thoughtful consideration to the statutory sentencing factors. Nevertheless, after demonizing Irey with over 100 references to uncharged conduct (child abuse), the Circuit Court either misconstrued or exaggerated my comments, or took them out of context, considered numerous facts and arguments never presented to me, and concluded that there were no mitigating circumstances to justify any sentence other than the 30-year guideline sentence.
This is an extraordinary and unprecedented result. The Circuit Court has effectively usurped my sentencing discretion and raised serious questions regarding Irey’s right to due process. I concede that the majority opinion has raised valid concerns about the reasonableness of the sentence I imposed. Were this case remanded to me for re-sentencing, I would take these concerns into account and exercise my discretion accordingly. But as it now stands, I will not be given that opportunity. Nor, it appears, will Irey be given the opportunity to confront the facts and arguments raised for the first time on appeal, which resulted in a 12 and a half year increase in his sentence.
In his separate opinion, Judge Tjoflat states that the majority opinion’s approach — i.e., resentencing defendants on appeal — does “immense and immeasurable institutional damage.” Irey III at 1267. In my opinion, it also undermines the basic tenets of sentencing law developed over the past five years, and opens a Pandora’s box of new sentencing issues. I regret that my sentencing of this defendant — including any errors I made in doing so — appears to have led to this result.
By my lights, this opinion stands as a de facto amicus brief in support of a cert petition that has not yet even been filled. As such, this opinion is quite unusual, and I wonder if commentors think it should be lauded or lamented.
Related posts on Irey case:
- Eleventh Circuit affirms below-guideline sentence in "utterly gruesome" sex offense case
- Eleventh Circuit to review en banc below-guideline sentence in "utterly gruesome" sex offense case
- Full Eleventh Circuit still struggling to figure out reasonableness review in Irey case
- Split en banc Eleventh Circuit rules child molester's 17½-year sentence substantively unreasonable
Will medical marijuana initiatives pass in Arizona, Oregon and South Dakota?
Though I have been paying closest attention to California's Proposition 19, which would legalize recreational marijuana use in that state, there are notable medical marijuana initiatives in three other states worth watching this election season. As highlighted on this Just Say Now page, voters in Arizona, Oregon and South Dakota will all be considering medical marijuana initiatives. Here are links to more information about these state initiatives, via the pro medical marijuana webpages supporting them:
California's Proposition 19 has been at the center the national marijuana prohibition debate in recent weeks and months, and I am not sure how that broader debate might impact voting in these other states. My sense is that medical marijuana initiatives have been mostly successful in recent years, but 2010 is a unique election season for a host of reasons. Nevertheless, I would make an educated guess that a majority (if not all) of these other marijuana initiatives win passage this year.
"Youngest Guantanamo detainee pleads guilty"
The title of this post is the headline of this CNN report, which raises a lot of interesting issues about plea and sentencing procedures and outcomes in a very high-profile setting. Here is are excerpts:
Guantanamo Bay detainee Omar Khadr pleaded guilty to charges against him Monday, the Pentagon said, in the first military commission trial there since Barack Obama became president. Khadr, 24, was accused of throwing a grenade during a 2002 firefight in Afghanistan that resulted in the death of Army Sgt. 1st Class Christopher Speer, a Special Forces medic.
Khadr, the youngest detainee at Guantanamo Bay, was 15 at the time. He faced a maximum sentence of life in prison. He pleaded guilty to murder in violation of the laws of war, attempted murder in violation of the laws of war, conspiracy, two counts of providing material support for terrorism and spying in the United States, a Canadian diplomat said.
Canada -- where Khadr was born -- has been closely involved in negotiations with the United States over his plea. Discussions have included the possibility that he could serve part of his sentence in Canada, sources said last week.
Pentagon spokesman Col. Dave Lapan said he expects the sentencing phase of Khadr's trial to start Tuesday, adding that it probably will finish this week. Details of the plea agreement are not made public, Lapan said, because the seven military officers on the jury "get the case without any knowledge of the pretrial agreement. They will issue a sentence for the record, and after that -- if the judge allows it -- the pretrial agreement can be revealed."
If the jury's sentence is different from the plea agreement, the shorter sentence will be imposed, Lapan said.
The military court in August viewed a 30-minute video that the government said shows Khadr helping assemble and plant roadside bombs targeting American troops in Afghanistan.... One of Khadr's Canadian attorneys indicated last week that he was open to a plea deal. "He is anxious to avoid a trial before that kangaroo court," Nate Whitling said in reference to the U.S. military commission at the Guantanamo Bay, Cuba, detention facility....
One source close to the negotiations said, "Khadr will have to decide" whether to sign onto a tentative deal negotiated by prosecution and defense lawyers. That arrangement calls for Khadr to be sentenced to eight years -- one year to be served in U.S. custody and seven years in Canadian custody.
Maryland's gubernatorial candidates do criminal justice cross-overs
Today's Baltimore Sun has this interesting new articleheadlined "Candidates cross party lines on criminal justice: O'Malley, Ehrlich differ on death penalty, rehabilitation." Here are excerpts:
In a state that consistently ranks among the nation's most dangerous, former Gov. Robert L. Ehrlich Jr. and Gov. Martin O'Malley defy partisan stereotypes in their approaches to crime.
O'Malley, the Democrat, describes public safety as "the foundation of everything," and his zero-tolerance arrest policy as mayor of Baltimore helped to position him as a law-and-order candidate for governor four years ago.
Ehrlich, the Republican, likes to remind voters of the controversial policy, which critics say resulted in the arrests of innocent people, and which was particularly unpopular with the African-American voters both campaigns covet. His own views on criminal justice — particularly his focus on rehabilitation — might resonate among the Democrats he needs to attract to win in a state where Republicans are outnumbered 2-to-1. "If you assist in doing justice, you're doing the job as governor," Ehrlich said.
Both lawyers by trade with family ties to law enforcement, Ehrlich and O'Malley have championed many of the same ideas: improving the state's criminal DNA database, protecting witnesses to crime, strengthening laws targeting sexual predators and reforming juvenile justice.
In other areas, the governors have distinct differences. Ehrlich supports the death penalty; O'Malley worked to eliminate it. O'Malley has not granted parole to anyone with a life sentence; Ehrlich maintained a robust clemency program....
Ehrlich says he would reinstate the death penalty, which O'Malley has effectively halted. At the same time, Ehrlich says, he would restart a review process for lifetime prisoners whom the parole commission believes are deserving of parole. He says he would return his focus to the juvenile justice system, which has struggled with high recidivism rates and security problems under both governors.
O'Malley, too, vows a renewed commitment to juvenile justice, a department reeling this year from the beating death of a teacher at the Cheltenham Youth Facility and a subsequent audit showing disarray throughout the department. O'Malley says he wants to "set no limits" on how much the state can reduce crime.
Maryland's homicide rate reached a 35-year low last year as violent crime nationwide continued to decline. A report published in April by CQ Press ranked the state the eighth most dangerous in the nation; it ranked second in murder and robbery....
O'Malley's wife is a Baltimore District Court judge; his father was a Montgomery County prosecutor. O'Malley began his career as a city prosecutor and was elected mayor on a crime-fighting platform. He says he became "obsessed" with crime as a city politician.
Ehrlich's wife was a public defender, and his grandfather was a city police officer. Ehrlich himself was a congressman on Sept. 11, 2001, and was inaugurated governor in 2003, as state and national leaders responded to new homeland security concerns....
The candidates have taken some party-line-crossing positions on prison services. Ehrlich refers frequently to "savables," and identifies RESTART, a program that provides inmates with education, counseling and reentry services from the moment they enter prison, as one of his greatest criminal justice accomplishments. He acknowledges that his "focus on the treatment regime runs counter" to the priorities of many fellow Republicans.
O'Malley, meanwhile, has called RESTART a dangerous diversion of public safety dollars away from security. He says he prefers to view prison, parole and probation and juvenile services primarily as law enforcers, rather than as service agencies. He says he has sharpened the focus of parole and probation so that agents now devote the most time to the most dangerous people.
"We used to supervise so many people so little that we effectively supervised no one," he said. "Now we supervise very intensely a smaller number of really high-risk offenders and are constantly improving our ability to send them back to jail as quickly as we can when they reoffend or violate the terms of their probation."
Regular readers can probably guess whom I am rooting for in the state in which I spent my first two decades. (For the record, no candidate has ever sought out an SL&P endorsement, which perhaps shows how savvy politicians truly are.)
October 24, 2010
Adding my two cents concerning application of the FSA to pending cases
As I noted in recent posts here and here, I think some courts have been a bit too quick to assert that defendants who committed crack offenses before the enactment of the Fair Sentencing Act can get no benefit from the the FSA's provisions. Spurred on by a helpful lawyer in NYC litigating this issue for a defendant awaiting initial sentencing in a multi-defendant case, I put together a letter with my thoughts about applying the FSA's provisions to cases in the pipeline that have not yet been sentenced.
The letter, which can be downloaded below, sets forth my view that Congress intended the new sentencing terms of the FSA to apply to pending cases as soon as possible. The letter gets started this way:
Counsel for some defendants in the above-captioned case have informed me that your Honor is currently considering motions to apply the terms of the Fair Sentencing Act of 2010 (hereafter “FSA”), which amended the penalty provisions of 21 U.S.C. § 841, during the upcoming sentencing of pending cases in which the offense behavior took place before the FSA became law. Taking on the role of a de facto amicus curae, I write to supplement some of the arguments set forth by counsel in this case. Because I believe that principles of statutory construction support application of the provisions of FSA to all pending cases, I wanted to write to suggest a resolution to these motions that would enable this Court to avoid wading too deeply into the many complicated constitutional and policy issues that might arise if this Court were to refuse to apply the amended penalty provisions of 21 U.S.C. § 841 in a case of this nature.
As the motion papers already highlight, there are serious constitutional arguments and strong policy considerations supporting the application of the FSA to all criminal cases not yet final. But, even more fundamentally, basic principles of statutory interpretation as well as venerated canons of construction suggest the FSA is to be applied to any and all cases such as this one in which an initial sentencing has not yet taken place. As detailed below, I believe Congress revealed its intent for the FSA to apply to pending cases through key provisions of the statute itself and through comments by key legislators in the Congressional Record. Moreover, even if this Court finds congressional intent to be unclear, both the rule of lenity and the constitutional doubt canon of statutory construction call for the FSA to be so applied.
"Graham v. Florida: Justice Kennedy’s Vision of Childhood and the Role of Judges"
The title of this post is the title of this new piece authored by Professor Tamar Birckhead and available via SSRN. Here is the abstract:
This short article examines Graham v. Florida, the United States Supreme Court decision holding that the Eighth Amendment’s Cruel and Unusual Punishments Clause does not permit a juvenile offender to be sentenced to life in prison without parole for a nonhomicide crime. This article argues that Justice Anthony Kennedy’s majority opinion is grounded not only in Roper v. Simmons, which invalidated the death penalty for juvenile offenders on Eighth Amendment grounds, and Kennedy v. Louisiana, which held that the Eighth Amendment prohibited the death penalty for the offense of rape of a child, but in Establishment Clause cases set in the context of public schools and Fourteenth Amendment Due Process Clause cases upholding parental notification requirements for teenagers seeking abortions.
Whereas many journalists and scholars consider Justice Kennedy a “legal pragmatist” who lacks an overarching philosophy to guide his decision-making, in each of these opinions his view of childhood and the proper role of judges is consistent: children and adolescents are unformed works in progress, in the midst of both character and brain development, who are particularly susceptible to direct as well as indirect forms of coercion; as a result, when determining what liberty interests are protected by the United States Constitution, the role of judges and the courts is to ensure that youth mitigates rather than aggravates. Further, although juvenile justice advocates have heralded Graham as a clear victory, the opinion may raise as many questions as it seeks to answer.
Should probation officers be giving federal judges secret sentencing recommendations?
The question in the title of this post is inspired by this effective Roanoke Times piece. The piece spotlights a rarely discussed but important issue of federal sentencing practiceunder the headline "Federal sentences are not clear-cut; Quite often, a judge will weigh heavily what a probation officer suggests in a pre-sentence report." Here are excerpts:
The mistakenly mailed court document offered a rare glimpse into the murky world of federal sentencing. And veteran Roanoke defense lawyer Randy Cargill didn't like what he saw.
Cargill, a federal public defender, was perturbed by a rarely discussed U.S. court rule that critics say conflicts with the presumption of judicial openness. In the Western District of Virginia, as in many other U.S. court districts, a probation officer makes a secret sentencing recommendation to the judge. Cargill accidentally saw the probation officer's recommendation for his client. The report was "misleading and inaccurate," Cargill wrote in a protest letter.
His client, a former Botetourt County restaurant operator now serving time for wire fraud and lying on loan documents, said the probation officer mischaracterized him, leading the judge to lengthen his prison term. "I'm upset I got 33 months," said Eric Wooten, 35, before he reported to prison this month. "But the guy that got 10 years, that's who's really affected by this."
Cargill's complaint sparked rounds of discussion among members of the federal probation office, U.S. attorney's office and federal judiciary. In the end, nothing changed. The private collaboration between probation officer and sentencing judge continues, just as it does in courts across the country.
After federal defendants are convicted, probation officers prepare a report to help judges decide punishment. The pre-sentence report discusses the convict's history, family, employment, ability to repay costs of the offense, and how the crime affected victims. The report includes a calculation of possible sentences under federal guidelines, based on scores for the offense and the defendant's criminal history.
This part of the pre-sentence report, while sealed from public view, is shared with the prosecution and the defense and often is vigorously debated in front of a judge in open court. Another part of the report rarely sees the light of day in most of the nation's 94 judicial districts. This is where the probation officer advises the judge what sentence to impose. "By local rule or by order in a case, the court may direct the probation officer not to disclose to anyone other than the court the officer's recommendation on the sentence," says the Federal Rules of Criminal Procedure, which governs the operation of U.S. courts.
No one who tracks how each of the nation's federal districts deals with the rule about sentencing recommendations, according to the national office of the federal defenders service and two longtime U.S. judges in Roanoke. Most districts keep the recommendations secret, between the judge and probation officer, said Karen Edmonds, a Washington-based spokeswoman for the administrative office of the U.S. Courts.
"There is no justification for a lack of transparency in this critical aspect of the adversary process," University of Arizona law professor Marc Miller wrote in an e-mail response to questions. Miller, editor emeritus of the academic journal Federal Sentencing Reporter, is among scholars and lawyers who for years have called for the U.S. Sentencing Commission and Congress to change the federal rule. Unless defense attorneys and prosecutors have a chance to challenge a probation officer's recommendation, a judge could impose a sentence based on wrong information, Miller said.
Paul Dull, a Roanoke defense lawyer not involved in Wooten's case, said basic fairness is at stake. "We all have clients who for one reason or another" irritate a probation officer, said Dull, who has years of federal courtroom experience. "And there's no way for us to know if the probation officer said to the judge, confidentially, 'Hey, this guy. ... He was uncooperative.' "...
Chief Judge Conrad called Wooten's case "an anomaly" in which a "breakdown of communication" created confusion about the adequacy of the financial documents Wooten submitted. Nevertheless, the process worked as it should, Conrad said.
Conrad briefly worked as a probation officer early in his career and wrote sentencing reports himself. As a judge, he said he finds the officers' sentencing recommendations helpful. Probation officers spend time investigating cases and defendants, often interviewing lawbreakers' family and friends. "They may look at things ... that I would miss," Conrad said.
Probation officers work for the court, for judges -- not for the defense or the prosecution, Conrad said. Any facts the probation officer turns up are supposed to be in the report shared with the defendant and the lawyers, Conrad said. The sentencing recommendation is supposed to be the probation officer's interpretation of the facts.
People accused of a crime have a constitutional right to face their accusers, but that's at trial, for a judgment of guilt or innocence, Conrad said. Sentencing is a different process, he said.
Taking stock of the costs of life and death (sentences) in Maryland
Today's Baltimore Sun has this interesting pieceheadlined "The steep price of 'life means life' in Maryland: Time for a commission on the cost of allowing governors to say no to parole for even senior lifers." Here are excerpts:
When the commission on capital punishment in Maryland, headed by former U.S. Attorney General Ben Civiletti, issued its final report last year, it concluded that the death penalty was not a cost-effective tool in the cause of public safety — in short, it was a waste of taxpayer money.... "There are other areas in the Maryland criminal justice system where such resources could be applied and significant results could be expected," the report concluded.
It's time for another independent commission to look at two more questions in this realm of cost-effective public safety:
1. Does the O'Malley administration's present policy of "life means life," or no parole for lifers, make sense for taxpayers, or does it merely exist for the benefit of politicians?
2. Should the governor be stripped of the power to reject recommendations of parole that come from the Maryland Parole Commission?
Those questions are connected, and allow me to introduce Hercules Williams as a way of explaining. Mr. Williams was charged, along with three other men, with the killing of a man named Alonzo Alston at his rowhouse in Baltimore in July 1972. Mr. Williams was 29 years old at the time. He pleaded not guilty, but a jury convicted him of murder and conspiracy to commit murder, and a judge sentenced him to life in prison.
The murder charge was later reversed, but the conspiracy count stood up. Mr. Williams has been in prison since November 1972. He has always claimed innocence. Many years after the trial, one of his co-conspirators came out and said Hercules Williams had had nothing to do with the Alston murder, but judges who heard Mr. Williams' appeals were not persuaded to alter his sentence.
Hercules Williams is now 67 years old. I've looked through his file. Everything indicates that Mr. Williams has progressed as a human being while in prison. He's received all kinds of letters of commendation and certificates. He was cited for rendering first aid to a correctional officer who was stabbed by another inmate at the old Maryland Penitentiary in 1978.
He was on work-release on the Eastern Shore for a time in the 1990s and earned an employee-of-the-month award from a chicken processor. But the governor at the time, Parris Glendening, ended work-release for anyone sentenced to life, so Mr. Williams went back inside.
He earned a bachelor's degree from Coppin State University and was in the midst of studies toward a master's degree when Congress, informed by conservative talk-show hosts that a tiny percentage of the federal budget was going to college grants for inmates, withdrew the funding that had made Mr. Williams' education possible.
There have been several different chairmen of the Maryland Parole Commission during his time inside the walls, and the parole commission has recommended that Mr. Williams be released at least three times. But it hasn't happened because of Parris Glendening and, now, Martin O'Malley. Both governors, both Democrats, have adhered to the simple-minded "life means life" policy, meaning no parole for lifers, even the older ones who were sentenced with the possibility of being paroled....
And what is the cost of the Glendening-O'Malley "no-parole-cuz-we're-tough-guys" stridency? For the last several years, I've been told that it costs the state about $25,000 to $27,000 annually to keep a man in prison. The cost was certainly lower in 1972, when Hercules Williams went into the correctional system. If, over the last 38 years, the average annual cost of keeping him locked up was about $17,000, then Mr. Williams has cost the state about $425,000 in cell and board. Add in the cost of his original trials and subsequent appeals, and $500,000 sounds about right, even on the conservative side.
What's the purpose, at this point, of keeping this man — and others his age — inside any longer, and on the public tab? Someone needs to take a look at what the politicians have done to the parole process, what it's costing us and whether it really serves public safety.