November 20, 2010
"Attorney: Man Dealing With Poison Ivy, Not Masturbating"
A helpful reader altered me to this amusing article carrying the headline that I made the title of this post. Here are the comical details:
A sex offender treatment supervisor for a Kentucky prison has been charged with indecent exposure. Charles Lickteig II, 48, is now on administrative leave from the Luther Luckett Correctional Complex in LaGrange.
According to court records, Lickteig had stopped his vehicle at Lime Kiln Lane and U.S. 42 when a woman pulled up beside him. She claimed Lickteig's genitals were exposed and he was masturbating. She also said Lickteig looked at her and he knew she saw him.
Court records also said the woman later saw Lickteig at the same intersection and was able to get the license plate number to Lickteig's car and called police. Licktieg was arrested on Oct. 14 and pleaded not guilty to second-degree indecent exposure.
Lickteig's attorney, Alex Dathorne, said Lickteig was also a police officer for eight years. "So he's quite in tune with the seriousness of these allegations and also the embarrassment that goes with simply making the allegations," Dathorne said.
Dathorne said there may be a reasonable explanation for what is now a very serious charge.... Dathorne said his client was not sexually gratifying himself, but instead, Lickteig was trying to deal with a severe case of poison ivy.
"State Victim Advocate: Too Many Plea Deals"
The title of this post is the headline of this interesting new piece in the Hartford Courant. Here are excerpts:
More than 95 percent of cases in the state's court system over the past four years were resolved without a trial, meaning too many end with plea bargains built on watered-down charges, the state victim advocate said Friday. People have died as a result, specifically in domestic violence cases, said the advocate, Michelle Cruz.
Cruz outlined her concerns in a four-page letter to the state Office of Policy and Management Thursday. She asked for a study of the number of criminal trials in the state, how long it takes to prosecute them, how many cases are resolved with plea bargains and why....
Although some sentences arise from plea deals for valid reasons, Cruz wrote, "the plea bargain process has been exploited." Defendant often agree to plead guilty to a lesser charges in order to avoid a trial. There are times when plea bargains are legitimate, Cruz said — such as if the state lacks evidence or wants to avoid having a child testify against someone who has sexually abused him or her. But there are too many "administrative" plea bargains, she said.
"After three years of being in Connecticut looking at cases, what I see is a pattern of defendants who are allowed to plea to a more lenient charge that often doesn't resemble the conduct," said Cruz, who was a prosecutor in Massachusetts. The lesser, substituted charge "doesn't reflect the seriousness of the offense," she said.
Her letter also said too many undeserving defendants are put in programs that keep them out of jail, and that, in general, court cases take too long to resolve. Cruz cited some specific examples of what she considers improper plea deals:
--Charges in a manslaughter case stemming from a double-fatal, drunken driving crash on I-95 were reduced to driving under the influence and evading responsibility.
--A man who was put in a diversionary program after a domestic violence case later killed his wife and then himself in West Haven.
--A charge of violation of a protective order in a domestic violence case was reduced to breach of peace; the defendant has since been charged with killing another woman.
--A home invasion charge was reduced to burglary....
State Rep. Michael Lawlor, chairman of the legislature's judiciary committee, said he agrees that there are not enough trials and that it is a problem. He said that he has spoken with Chief State's Attorney Kevin Kane about the lack of trials — which he said is mostly a problem in lower courts where less serious cases are handled — and that Kane agrees there has to be more of an effort to bring cases to trial.
Lawlor, a criminal justice professor who also is a former state's attorney, said prosecutors who don't often take cases to trial get "rusty" and become more and more reluctant to try cases. Good defense attorneys can sense this and will push for a better deal for their clients in exchange for a guilty plea, he said. "I do think the end result is plea bargains are more lenient than you want them to be," Lawlor said.
Changes to encourage more trials, such as moving staff around and providing extra training, may happen in the next few years under the leadership of Gov.-elect Dannel Malloy, himself a former prosecutor, Lawlor said.
Complaints about capital justice delayed in Nevada
Echoing a similar piece from Ohio noted earlier this week, a local station in Las Vegas has this new piece about capital justice delayed in Nevada. The story is headlined "Victim's Families Wait Decades for Death Penalties to be Carried Out," and here are excerpts:
For all practical purposes, the death penalty in Nevada functions as a sentence of life without parole. In the last 30 years, the state has executed just one person who wasn't a volunteer. Advocates on both sides of the issue agree the system doesn't work, but no one is more frustrated by it than the families of the victims....
[M]ore than half of the 83 inmates currently on death row have been there a decade or longer. Two have surpassed the 30 year mark. They are delayed due to constitutionally-protected appeals of the process that put them there.
"I can sympathize with the victims," said Chief Deputy District Attorney Steve Owens. "We have a death penalty. Is it being carried out the way it was intended? I don't think so. I don't see that we ever really reach an end where people are running out of their appellate rights."...
"They shouldn't be allowed a second and third and fourth bite at the apple," said Owens. "You shouldn't have to review a case for 20 years to decide whether this was a valid imposition of the death penalty."
UNLV law professor Christopher Blakesley echoes the frustrations on both sides of the debate. Yet ultimately, he defends the existing process absent a workable alternative. "You have to do it right because there are so many innocent people that we're finding out have been convicted and if you don't go through all this, they'll be executed," he said.
People like former Nevada death row inmate Ronnie Milligan, recently ordered released after 20 years. Evidence uncovered during his death penalty appeal suggests he may be innocent of murder.
November 19, 2010
Texas Court of Criminal Appeals rejects attack on juve LWOP for murderer
As detailed in this report in the Austin American-Statesman, earlier this week the Texas Court of Criminal Appeals held that "sentencing juvenile murderers to life in prison without any chance of parole is not unreasonably harsh." Here are more details (along with links inserted to the opinions ):
Chris Joshua Meadoux, convicted of killing two San Antonio friends when he was 16, argued that his no-parole sentence violated the U.S. Constitution's ban on cruel and unusual punishment because juveniles lack maturity, judgment and an adult's sense of responsibility.
But in a 7-2 ruling, the state's highest criminal court said that juveniles may be less morally culpable than adults, but some actions justify imposing the second-harshest penalty available in Texas.
"Given the enormity of the crimes committed by juvenile capital offenders, the Legislature could reasonably conclude that such offenders are incorrigible and that the only prudent course of action is to separate them from society forever," said the opinion [available here], written by Judge Charles Holcomb.
Although Texas law no longer allows the practice, life without parole was available for juvenile capital murder defendants who were tried as adults from 2005 to 2009. Twenty teens were sentenced to remain jailed until they die, including Meadoux, now 20.
A dissenting opinion [available here] by Judge Lawrence Meyers said the court should have ordered new punishment hearings for Meadoux and the other juvenile offenders. Meyers noted that after the U.S. Supreme Court banned executing juvenile killers in 2005, sentences for the affected inmates were commuted to life terms with the possibility of parole after 40 years served. "It's ridiculous to say that a juvenile who was not even eligible for the death penalty" should receive a harsher no-parole sentence, he wrote in the dissent joined by Judge Cheryl Johnson.
In 2005, the Texas Legislature voted to let jurors choose life without parole or execution for capital murder. Four years later, the law was amended to ban no-parole sentences for those who committed murder while younger than 18. Several legislators said the move was intended to correct an oversight in the 2005 law, but the no-parole ban was not made retroactive....
The case is Meadoux v. Texas, PD-0123-10.
Notable new publication on deterrence from The Sentencing Project
Today I received an e-mail about a new publication about deterrence from the folks at The Sentencing Project. Here is the text:
We are pleased to let you know of our new publication, Deterrence in Criminal Justice: Evaluating Certainty versus Severity of Punishment by Valerie Wright, Ph.D. The report addresses a key concern for policy makers regarding whether deterrence is better achieved by increasing the likelihood of apprehension or increasing the severity of sanctions. Overall, the report concludes that:
At a time when fiscal concerns have propelled policymakers to consider means of controlling corrections budgets, the findings on deterrence suggest that a focus on examining harsh sentencing practices is long overdue. In many cases prison terms could be shortened without having any adverse effects on public safety. I hope you find this publication useful in your work.
- Enhancing the certainty of punishment is far more likely to produce deterrent effects than increasing the severity of punishment.
- Particularly at high levels of incarceration, there is no significant public safety benefit to increasing the severity of sentences by imposing longer prison terms.
- Policies such as “three strikes and you’re out” and mandatory minimum sentences only burden state budgets without increasing public safety.
- Evidence-based approaches would require increasing the certainty of punishment by improving the likelihood of detection.
"It's 'give back' time: Locally grown foods and criminal sentences"
The title of this post is the headline of this interesting op-ed in today's Chicago Tribune authored by Professors Lynn Branham and Bruce Branham. As the title hints, the piece has a creative proposal for an alternative sentencing program. Here are excerpts:
A few months ago, the two of us were, once again, victims of crime — burglary and theft. We felt what so many crime victims feel. Invaded. Vulnerable. Angry.
What we soon discovered, though, was that there were limits — rational limits — to our anger toward those who had victimized us. When we asked each other whether we wanted these people sent to jail or perhaps even prison if they were caught and convicted, the answer, to our surprise, was no. We wanted something more.
What we really wanted was not to "get back" at the perpetrators of the crimes. What we wanted was for them to "give back" for the harm their crimes had caused.
That harm, we recognized, went far beyond us. Those who commit crimes also fracture neighborhoods and communities, instilling all of us with resentment, fear and distrust.
So if we were to craft a penalty for the malefactors who stole from us, what would it entail? Work. Hard work. Productive work. Work that makes amends for their crimes by helping others.
Which brings us to what many consider the "wastelands" in Chicago. You know. The places rived by crime and poverty. The places from which a disproportionate percentage of the inmates in the local jail and the state's prisons hail. The places where hope can seem mythical.
What people may not know about these areas of the city is how difficult, and sometimes impossible, it is for people living in them to obtain fresh or homegrown foods. There is, it is true, a burgeoning movement in this country to make locally grown foods readily available. The goals are to make our meals tastier, our health improved and our waistlines, hopefully, smaller.
But the local foods movement has largely missed the poor and decimated parts of urban cities. One of us, a horticulturist, witnessed this gap while working with a ministry in Chicago that wants to grow and distribute fresh produce to the poor. During that endeavor, it became apparent to both of us that a structure needs to be put in place to facilitate the growing, preserving, distribution and preparation of healthy foods in poor neighborhoods of Chicago.
That structure can come from what many might consider the most unlikely of sources — the criminal justice system. Prisons and jails in this state are overflowing with inmates whiling away their time, at enormous expense to taxpayers. Many of these criminals can be enlisted in making locally grown foods readily accessible to the poor. Tilling, planting, weeding, harvesting and distributing fresh produce, as well as preserving some of it, takes a lot of time. And that is something that inmates have an abundant supply of.
The local foods work crews laboring to help the poor, however, would not be composed solely of incarcerated individuals. In fact, developing a structure to provide judges the option of imposing this kind of "work sentence" would obviate the need or perceived need to incarcerate many of those who now wind up in prison or jail. These exorbitantly expensive incarceration resources could then be conserved for the violent and incorrigible offenders for whom incarceration is the only viable sentencing alternative.
Federal judge cutting deal to avoid prison time for drugs, guns and stripper activities
As reported in this piece in the Atlanta Journal-Constitution, which is headlined "Federal judge to plead guilty in drug case," senior U.S. District Judge Jack Camp appears to have worked out a sweet plea deal following his arrest on various drug and gun offenses. Here are some of the specifics:
Senior U.S. District Judge Jack Camp, whose arrest on charges of buying drugs and his relationship with a stripper shocked the state's legal community, will plead guilty Friday to federal charges, his lawyer said. “We’ve reached a mutually agreeable resolution of the case,” Atlanta attorney Bill Morrison said Thursday. Morrison would not disclose the specific charges the judge would plead guilty to.
Camp, 67, is scheduled to enter his plea in Atlanta before Senior U.S. District Judge Thomas Hogan, a judge from Washington who was assigned the case. On Thursday, Hogan disclosed Camp's decision to enter a guilty plea in an entry on the court's online docket sheet.
In a court filing Thursday, federal prosecutors indicated Camp will plead guilty to at least one felony charge -- aiding and abetting a felon's possession of cocaine, a painkiller and marijuana. The filing did not disclose whether Camp will enter pleas to other charges.
Camp could avoid prison time if, as expected, his agreement with federal prosecutors does not require him to plead guilty to the most serious charge against him — being an illegal drug user who was found in possession of a handgun — said Steve Sadow, an Atlanta defense attorney who is not involved in the case. Federal sentencing guidelines recommend at least five months in prison for that charge, Sadow said. If Camp pleads guilty to lesser charges, he could receive probation, home confinement or time in a halfway house, he said.
Camp, a member of a prominent Coweta County family, was appointed to the federal bench by President Ronald Reagan in 1988. He was serving as chief judge when he took senior status at the end of 2008.
Camp was arrested in early October, and a detailed affidavit by an FBI agent accused the judge of buying cocaine, marijuana and prescription painkillers. The affidavit said Camp shared the drugs with an exotic dancer he met last spring at the Goldrush Showbar in Atlanta.
Camp, who is married, met the dancer when he purchased a private dance from her, the affidavit said. He returned the next night and purchased another dance and sex from her, and the two then began a relationship that revolved around drug use and sex, according to court records.
The stripper began cooperating with the FBI, and on Oct. 1 she asked Camp to follow her to a drug deal to protect her. Camp agreed, saying, "I'll watch your back anytime. ... I not only have my little pistol, I've got my big pistol so, uh, we'll take care of any problems that come up," the affidavit said.
Though federal practitioners can and should correct me if I am wrong, I believe it is fairly uncommon that a defendant involved in a series of drug transactions with the involvement of firearms will be able to cut a plea deal that enable him to potentially avoid any prison time. I am not directly asserting that Judge Camp is getting special treatment, but I do think the judge's own familiarity with the ins-and-outs of federal criminal law and practice likely played a significant role in how this case is getting resolved.
In the end, I will be surprised if any plea deal here locks in a specific sentence of Judge Camp. Assuming the deal leaves Judge Hogan with some sentencing discretion, I would not be surprised if Judge Camp still may face some hard time. (And perhaps readers might want to give Judge Hogan some early sentencing advice via the comments.)
Related post (which generated lots of comments):
UPDATE: This new AP report provides details on the basics of the plea that was entered today:
U.S. Senior Judge Jack T. Camp pleaded guilty to the felony charge of aiding and abetting a felon's possession of cocaine when he bought drugs for the stripper, who was secretly cooperating with authorities. He also pleaded guilty to two misdemeanors: possession of illegal drugs and illegally giving the stripper his government-issued laptop.
Camp, 67, faces up to four years in federal prison when he is sentenced March 4, but he is likely to get less time. Camp also agreed to resign from the bench and cooperate with any questions authorities may have regarding the cases he handled while he was being investigated.
When a judge asked Camp if the charges were accurate, he replied, "I regret ... I am embarrassed to say it is, your honor." Neither he nor his attorneys offered any explanation for his actions.
Out-going Ohio Governor giving focused attention to clemency requests
As detailed in this local article, which is headlined "Gov. Strickland plans to decide on 1,200 clemency requests before leaving office," Ohio's out-going governor is planning to get through a huge pile of clemency petitions before he is out of his job. Here are some details:
Before leaving office Jan. 9, Gov. Ted Strickland said he hopes to make decisions on all 1,200 applications for clemency now piled on his desk. “I’ve been working through them. I’ve been spending hours and hours and hours. I spent about three hours this morning working on them,” Strickland said on Thursday.
He said these days he is spending the majority of his time on the clemency applications and he expects to rule on a batch of clemency requests within a week or so. Strickland, a former prison psychologist, said some applications aren’t good candidates for extensive consideration while others are more complex....
A year ago, Strickland granted 68 pardons, commuted 10 sentences and denied 218 other requests for clemency. During his tenure, he also granted commutation to five death row inmates but signed off on the executions of 17 men....
“I’m trying to be fair and deliberative in my decision making. I don’t want to just start picking and choosing what I look at based upon, I mean, A lot of people are calling about a lot of cases: ‘Can you look at this?’...I don’t think that’s the way this process ought to be handled,” he said. “I think it ought to be handled carefully and deliberatively and that’s what I’m trying to do.”
During his eight years as governor, Republican Bob Taft granted 77 clemency requests, or 5.7 percent of the 1,355 applications received and processed. And in his final days in office in 1991, Democrat Richard Celeste sparked headlines when he commuted the sentences of eight death row inmates to life without parole and granted pardons for 25 women who blamed their crimes on battered women syndrome.
Senator Dorgan pushing AG Holder to push states on AWA sex offender tracking
As detailed in this news piece, which is headlined "Senator to push states to comply with sex offenders law," at least one member of the Senate is not happy that the Justice Department keeps giving states more time to comply with the sex offender registration provisions of the Adam Walsh Act. Here are the details:
A senator who sponsored a key provision in the Adam Walsh Act mandating better tracking of convicted sex offenders wants the Department of Justice to stop allowing states to ignore a key provision of the law.
Sen. Byron Dorgan, D-N.D., said Thursday he would ask the Justice department to stop giving extensions to the 46 states that have failed to come into compliance with the landmark 2006 law. The first deadline for the states was in July 2009. The deadline has since been extended twice.
Dorgan said that, without extensions, the states risk losing tens of millions of dollars if they don't update their tracking systems — and in some cases pass state laws — by the current July 2011 deadline.
Because states keep their own sex offender databases, their records often don't sync well with files from other jurisdictions. A driving idea behind the Adam Walsh legislation was that uniform definitions and bookkeeping standards would help form a more seamless national tracking system, helping make sure convicted sex offenders don't slip through the cracks....
Dorgan's action comes less than two weeks after a Scripps Howard News Service investigation found that the location of 100,000 convicted sex offenders is unknown to authorities. In all, more than 700,000 offenders have been convicted of a sex crime in the United States — a number that has grown by 100,000 since 2006, according to records from the National Center for Missing and Exploited Children.
At issue is the Sex Offender Registration and Notification Act, which is part of the Adam Walsh law. The registration provision requires a three-tiered offender classification system and the listing of offenders for between 15 years and life, depending on the severity of the crime.
Only four states — Delaware, Florida, Ohio and South Dakota — have the upgraded systems in place, though some other states are close to being onboard.... Under the Adam Walsh law, states that don't update their sex offender tracking may lose 10 percent of their share of funds from the Edward Byrne Memorial Justice Assistance Grant program, the primary federal source of funds for state and local criminal justice programs.
Previous deadlines to enact the tighter sex offender rules came and went without the Justice department withholding the grant money. "It's now time to say to the rest of them, 'Look, you've had time to comply if you've decided not to comply, here's the penalty — you're going to lose a portion of your Byrne Grant funding'" Dorgan said.
"Rethinking Criminal Justice — Why Black Prosecutors Matter"
The title of this post is the headline of this interesting new piece appearing in New America Media. Here is how it begins:
Nearly three weeks after the midterm elections, the winner of the hard-fought race to become California’s next attorney general has not been determined. Kamala Harris, the San Francisco district attorney, holds a razor-thin lead over Steve Cooley, her Los Angeles County counterpart, with some 680,000 votes remaining to be counted.
While the stakes are highest for California residents, the AG race is also being watched closely in legal circles nationwide, especially by people concerned about criminal justic policies and practices that have a harmful affect on communities of color. They support Harris’ efforts to address these issues.
As San Francisco’s chief prosecutor, Harris is among a current crop of elected black DAs who are transforming the way crime is addressed, suspects are prosecuted, and punishment is meted out. Her innovative approaches for being “Smart on Crime,” instead of simply “tough on crime” are have gained political currency for being thoughtful and pragmatic and are being borrowed by DAs around the country, particularly those in communities with large black, Latino or other minority populations.
Regular executions not stopping complaints about capital justice delayed in Ohio
I was intrigued and somewhat surprised to see this segment, headlined "Death Penalty Cases Stalled In Appeals Court," on my late local news last night. Complaints about the slow pace of death penalty appeals seem less common when a state is regularly conducting executions, but Ohio's monthly executions of late did not even get mentioned in this local piece spotlighting appellate delays in the review of Ohio capital cases. Here are excerpts:
They have been convicted of murder and sentenced to death but in many cases their appeals and their death sentences -- are stuck on hold. Proceedings at the Sixth Circuit Court of Appeals, which covers several states including Ohio, often stall, even after all of the arguments have been made, 10 Investigates' Paul Aker reported on Thursday....
Three men broke into Norman Stout's home 26 years ago. They attacked him and fired two gunshots at his head, one of them striking Stout between his eyes.... The attackers then went after his wife of 34 years, Mary Jane Norman. "I did hear the last four shots that killed her," Stout said....
The court sentenced two of the attackers to prison, but decided one of them, David Stumpf, should die for the crime. While Stout was spending his years visiting his wife at the cemetery, Stumpf spent them appealing his death penalty ruling.
Finally, Stumpf got a hearing before the U.S. Supreme Court, but it sent the case back to the Sixth Circuit Court of Appeals. The case was argued more than three years ago but there is still no decision.
Ohio's Attorney General recently filed a motion asking the court to rule, Aker reported. Stumpf is still alive and Stout still waits for an answer. "I want them to do their job," Stout said. "To earn the money they're drawing monthly."
[I]t is not just one case being delayed. 10 Investigates scoured thousands of court records and isolated cases involving death penalty issues.... The investigation revealed six cases, five from Ohio, that all involved murders committed in the 1980s or early 1990s. 10 Investigates also examined four nearby circuit courts and between all of them, there were only two cases that had waited anywhere near a year, Aker reported....
Officials could not talk about the specifics of the case, but Chief Judge Alice Batchelder said death penalty cases often take a long time because judges need to thoroughly review records and the outcomes are so important. Batchelder also said the court has to deal with an extremely high caseload.
Until the court finds a way to speed up the process, an 80-year-old man with lead in his brain and a hole in heart has no choice but endure the pain of waiting. "The system is broken," Stout said.
November 18, 2010
"Ghailani Still Faces Stiff Penalty for Bombings"
The title of this post is the headline of this lengthy and effective new CBS News piece discussing some of the sentencing issues following yesterday's conviction (on only one of 285 counts) of a former GITMO detainee tried in civilian court. Here are excerpts:
When he is sentenced in January, al Qaeda operative Ahmed Khalfan Ghailani, 36, faces a minimum 20 years of imprisonment, and a possible life sentence, for his conviction Wednesday for his role in the 1998 U.S. embassy bombings in East Africa.
In the first federal terrorism trial of a former detainee at the prison camp at the U.S. naval base in Guantanamo Bay, Cuba, a civilian jury found Ghailani guilty, but only of one of 285 counts levied against him: conspiracy to destroy buildings and property of United States by means of an explosive.
Although the jury determined Ghailani had a hand in a conspiracy that resulted in death, the panel found him personally not guilty on all 224 murder counts -- 11 for those who died in truck bombing of the American embassy in Dar es Salaam, Tanzania, the focus of his trial, and for the 213 people who died in nearly simultaneous explosion in Nairobi, Kenya, on Aug. 7, 1998.
"At the start of this trial, we believed Ahmed was truly innocent of all these charges," lead defense attorney Peter Quijano said outside the Lower Manhattan courthouse Wednesday evening. "We still truly believe he is innocent of all the charges."...
The jury found Ghailani not guilty of four other conspiracy counts, including the top count of the indictment, al Qaeda's global conspiracy to kill Americans, which would have guaranteed the same life sentence being served by four men convicted in the embassy bombings conspiracy in a 2001 trial.
U.S. District Judge Lewis Kaplan, who presided over the month-long trial, scheduled Ghailani's sentencing hearing for January 25, 2011, at 11 a.m. "He will face, and we will seek, the maximum sentence of life without parole when he is sentenced in January," said Preet Bharara, U.S. attorney for the Southern District of New York, in a written statement....
The jury was told that Ghailani was captured in Pakistan in July 2004, but was provided no information about his alleged activities while a fugitive for six years following the Africa bombings or anything about his six years in custody.
He spent two years in a secret CIA prison overseas, where he was subjected to "enhanced interrogation techniques" his lawyers called torture. Then he was moved to Guantanamo for three years before his transfer to the U.S. last year. He has been held in the high security wing of the Metropolitan Correctional Center adjacent to the courthouse....
Over the course of the past month, the jury heard 13 days of testimony and evidence, with 50 prosecution witnesses and hundreds of government exhibits, and two days of closing arguments. More than a third of the witnesses, including embassy bombing survivors from Africa and FBI agents, had previously testified in the 2001 trial. The defense called no witnesses, nor did the defendant testify....
The government has achieved more than 200 convictions in terrorism-related prosecutions since 9/11 and a 90 percent conviction rate, according the the NYU Center on Law and Security, which tracks theses cases....
With Ghailani facing a 20 year minimum sentence, his attorneys plan to argue that he should get credit for six years served in U.S, custody, a consideration with other al Qaeda suspects detained as "enemy combatants" prior to seeing their legal situations resolved in federal court, such as Jose Padilla and Ali al-Marri. The defense teams also plans to file a motion for a new trial on the one conspiracy count for which Ghailani was convicted.
If prosecutors fell short, they failed to persuade all the jurors that Ghailani knowingly and willfully participated in the overall al Qaeda conspiracy or that he knew its lethal goals in East Africa. "We never disputed that he engaged in certain conduct," Quijano said of Ghailani. "The question both strategically as well as legally, was whether there was proof that he knew."
Unsurprisingly, most of the immediate post-verdict discussion has been about what this result means for the Obama Administration's apparent interest in trying many former GITMO detainee in civilian courts. But, also unsurprisingly, I am immediately interested in the array of unique (and not-so-unique) sentencing issues that Judge Kaplan will be facing. The Government will surely emphasize so-called "acquitted conduct" as part of its advocacy for an LWOP sentence, and I have a feeling prosecutors will adopt an approach to guideline calculations that will have the advisory range urge life as well. Meanwhile, the defense seem likely to urge the minimum sentence of 20 years (as well as credit for time served), and it is especially interesting to speculate about how both sides will spin arguments around all the 3553(a) factors. In other words, sentencing fans, stay tuned.
Senators Leahy and Durbin write letter to Attorney General Holder urging application of FSA to pending cases
I am very pleased to have learned this morning of a potent two-page letter, dated November 17, 2010, signed by Senator Patrick Leahy and Senator Dick Durbin to Attorney General Eric Holder, which urges the Justice Department to "apply [the Fair Sentencing Act's] modified mandatory minimums to all defendants who have not yet been sentenced, including those whose conduct predates the legislation's enactment." Here is most of the text from the letter (which can be downloaded below):
The preamble of the Fair Sentencing Act states that its purpose is to "restore fairness to Federal cocaine sentencing." While the Fair Sentencing Act did not completely eliminate the sentencing disparity between crack and powder cocaine, as the Justice Department had advocated, it did significantly reduce the disparity. We believe this will decrease racial disparities and help restore confidence in the criminal justice system, especially in minority communities.
Our goal in passing the Fair Sentencing Act was to restore fairness to Federal cocaine sentencing as soon as possible. As Senator Durbin said when the Fair Sentencing Act passed the Senate: "We have talked about the need to address the crack-powder disparity for too long. Every day that passes without taking action to solve this problem is another day that people are being sentenced under a law that virtually everyone agrees is unjust." You expressed a similar sentiment in testimony before the Senate Judiciary Committee, when you urged Congress to eliminate the crack-powder disparity: "The stakes are simply too high to let reform in this area wait any longer."
This sense of urgency is why we required the U.S. Sentencing Commission to promulgate an emergency amendment to the Sentencing Guidelines. The revised Guidelines took effect on November 1,2010, and will apply to all defendants who have not yet been sentenced.
And this sense of urgency is why the Fair Sentencing Act's reduced crack penalties should apply to defendants whose conduct predates enactment of the legislation but who have not yet been sentenced. Otherwise, defendants will continue to be sentenced under a law that Congress has determined is unfair for the next five years, until the statute of limitations runs on conduct prior to the enactment of the Fair Sentencing Act. This absurd result is obviously inconsistent with the purpose of the Fair Sentencing Act.
As you know, Judge D. Brock Hornby, an appointee of President George H.W. Bush, recently held that the Fair Sentencing Act's reduced mandatory minimums apply to defendants who have not yet been sentenced. In his opinion, Judge Hornby wrote, "what possible reason could there be to want judges to continue to impose new sentences that are not 'fair' over the next five years while the statute of limitations runs? ... I would find it gravely disquieting to apply hereafter a sentencing penalty that Congress has declared to be unfair." We wholeheartedly agree with Judge Hornby.
We were therefore disturbed to learn that the Justice Department apparently has taken the position that the Fair Sentencing Act should not apply to defendants who have not yet been sentenced if their conduct took place prior to the legislation's enactment. In his opinion, Judge Hornby states that the Assistant U.S. Attorney in the case said he understood this to be the position of the Department of Justice.
Regardless of the legal merits of this position, the Justice Department has the authority and responsibility to seek sentences consistent with the Fair Sentencing Act as a matter of prosecutorial discretion. This is consistent with your view that reforming the sentencing disparity "cannot wait any longer." It is also consistent with the Justice Department's mission statement, which states that the Department should "seek just punishment for those guilty of unlawful behavior" and "ensure fair and impartial administration of justice for all Americans."... In this instance, justice requires that defendants not be sentenced for the next five years under a law that Congress has determined is unfair.
Therefore, we urge you to issue guidance to federal prosecutors instructing them to seek sentences consistent with the Fair Sentencing Act's reduced mandatory minimums for defendants who have not yet been sentenced, regardless of when their conduct took place. Additionally, please provide us with any guidance that you have already issued to federal prosecutors regarding implementation of the Fair Sentencing Act.
Regular readers may recall this post of mine from a few weeks ago in which I wondered "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?". I am extraordinarily pleased to discover that two US Senators who played a leading role in the FSA's enactment are wondering the same thing.
I hope and certainly expect that this important and potent letter generates more of an official response from the Justice Department than did by blog post. More importantly, I hope (though I am not sure if we can expect) that this important and potent letter greatly increases the likelihood that many not-yet-sentenced defendants will be subject to the FSA's new sentencing provisions.
Some recent related posts:
- Adding my two cents concerning application of the FSA to pending cases
- New USDC opinion applying new FSA law to not-yet-sentenced defendants
- Seeking ground reports on the FSA's application to not-yet-sentenced cases
- 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?
- Does Abbott provide new and added support for applying the FSA to pending cases?
"Arizona mandatory-sentencing laws targeted"
The title of this post is the headline of this article about a debate over budget-driven sentencing reform talk among legislators in Arizona. Here are excerpts:
A GOP lawmaker on Wednesday vowed to propose legislation next year that would give Arizona judges more discretion when sentencing criminals, but another promised to block it.
Rep. Cecil Ash, R-Mesa, who chairs a state legislative committee studying prison sentencing, said the bill would seek to loosen mandatory-sentencing laws, provide more just punishment and save Arizona money. Mandatory-sentencing laws adopted in the 1990s in Arizona and across the nation have "tied the hands of judges" and left Arizonans paying millions of dollars to imprison non-violent criminals, he said....
Growth in the inmate population has made the state's prison system Arizona's third-largest expense behind education and health care, Ash said. According to a Department of Corrections analysis, Arizona's prison population is roughly 10 times bigger than it was 30 years ago.
Ash said Arizona had surpassed many states' incarceration rates. "With a population of roughly 6.5 million, we have over 40,000 inmates," Ash said. "The state of Washington, with a population slightly larger than Arizona, has roughly 18,000."
Ash cited the state's budget crisis as reason for looking for ways to decrease spending in the state's corrections system. "I think we can make some improvements that ensure public safety," he said. "The purpose isn't to let people out of prison early; the purpose is to stop wasting resources."
But fellow GOP lawmaker Sen. Ron Gould, the incoming chairman of the Senate Judiciary Committee, said Tuesday that Ash's bill would "never see the light of day." Gould heads the committee that the bill would likely be assigned to.
"Just because he's a member of my party . . . it's not getting my support," Gould said. "It's beyond a money issue. It's a principal issue. I think I have the support of 21 (Senate) Republicans who are not going to allow (for) letting criminals out early."
The attitudes and rhetoric used by state Senator Gould here presents the critical impediment to cost-effective sentencing reforms. I remain hopeful that tea-party types will generally not tolerate politicians placing off-limits entirely cuts in the third-biggest government expense, but this article again highlights the reality that many readily assert that fiscally conservative cuts should not be made to any big government criminal justice expenditures.
November 17, 2010
Post-Graham resentencing of juve rapist in Florida already testing meaning of Graham
This local article from Florida, which is headlined "Teenage rapist Jose Walle re-sentenced to 65 years in prison," spotlights the impact of, and enduring questions surrounding, the Supreme Court's recent Graham decision declaring unconstitutional any LWOP sentence for a nonhomicide juvenile offender. Here is how the piece starts:
Circuit Judge Chet A. Tharpe disagreed with a U.S. Supreme Court decision forcing him to re-sentence teenage rapist Jose Walle, who was only 13 when he terrorized two Apollo Beach waitresses at gunpoint. But on Wednesday, he obeyed the high court, which deemed life sentences unconstitutional for juveniles who didn't kill.
Walle hung his head as Tharpe sentenced him to 65 years in prison, which he will begin to serve after completing the 27 years he got in Pinellas for another rape. Taking into consideration credits prisoners get, he would be about 91 years old when he gets a chance at freedom.
The defense, which had asked for 27 years to run concurrent to the Pinellas sentence, plans to appeal. The Supreme Court ruling requires a meaningful opportunity for release.
Prosecutors said even a 75-year sentence would have guaranteed that, taking into consideration Walle's life expectancy and the multiple life felonies he committed. Assistant State Attorney Rita Peters argues that the ruling applies to each crime, not the cumulative years of the sentences for multiple crimes.
But Robert Batey, a criminal law professor at Stetson University College of Law, thinks the Supreme Court was most concerned about the total sentence in comparison to the juvenile's age. He believes the defense can make a good argument that Tharpe's sentence violates the ruling.
An appellate court may have to decide how consecutive sentences weigh into the math.
Tharpe adhered to the spirit of his original sentence, when he said he needed to protect the public from Walle, whom Tharpe was certain would one day kill. "Jose Walle knew the difference between right and wrong," Tharpe said Wednesday. "He has forfeited his right to live in a free society."
Animal creulty sentence of 12 years in prison stirring debate in Puerto Rico
As detailed in this AP article, in Puerto Rico a "12-year prison sentence for a man who dragged a horse behind his truck has touched off a debate over whether a new animal cruelty law goes too far, when even homicide can result in lighter penalties." Here is more about the case and the controversy:
Georgenan Lopez, who is in his early 20s, is the first person convicted by a jury under the law implemented in August 2008 in response to complaints that the island is indifferent to cruel treatment of animals.
The criticism gained traction - and publicity - in 2007 when authorities seized dozens of dogs from public housing projects and threw them to their deaths from a bridge.
Lopez's attorney said Wednesday that he will appeal, calling the sentence excessive, unusual and cruel, since convictions for crimes like second-degree murder often yield lesser sentences. "They are comparing an animal to a human being," lawyer Julian Claudio said. "The animal didn't even die."
Prosecutor Andres Fernandez said the horse was dragged for about 15 minutes behind the truck as it tried to keep its balance and kept falling down. He said it had a rope around its neck that was tied to the vehicle. He declined to comment on the sentence except to say that the judge was following the law.
Osvaldo Toledo, president of Puerto Rico's Association of Attorneys, said the length of the sentence in a case where the animal survived sets a dangerous precedent.... Toledo added that he would ask lawmakers to review the animal cruelty law to ensure that penalties are in line with the crime.
According to a transcript of the sentencing, Judge Jose Montijo told Lopez he had an attitude problem and did not communicate well with people, and noted that the accused faced burglary and drug charges previously....
Since the dragging incident last February, the mare has gained weight but still limps and can never be ridden, said Lisa Embree, who runs a horse rescue group in northwest Puerto Rico that adopted the animal, dubbed "Little Miracles." She said she feels sorry for Lopez's family, but praised the tough sentence as an important measure to reduce animal abuse.
"Nevada judge sentencing some to service, not jail"
The title of this post is the headline of this encouraging local article, and here are excerpts:
In the first days of his three-month stint as interim East Fork justice of the peace, Senior Judge Steven R. McMorris began the process of introducing community service in sentencing minor offenders.
As a result, the population of the Douglas County Jail has been reduced, and county and nonprofit organizations have realized thousands of dollars in savings by employing offenders whose unpaid labor is valued at $20 an hour.
McMorris enlisted the help of Chief Alternative Sentencing Officer Michael Beam and Tahoe Township Judge Richard Glasson in setting up community service. Glasson has had the alternative in place in his court for eight years.
So far, the program has placed workers in the Douglas County libraries, senior center, animal shelter, Indian Hills General Improvement District, area thrift shops, parks, the town of Genoa and the Carson Valley Arts Council....
David Dubra of Gardnerville elected community service in lieu of 48 hours jail time for a first offense of driving under the influence. The 61-year-old was placed at Douglas County Senior Center in Gardnerville and was grateful for the opportunity to remain out of jail.
Dubra said he would work at the senior center with pride. “I’m not crying about it,” he said. “I am quite willing to do it. I’ll bust my butt for them.” Dubra said because of his wife’s health, he was unable to leave her alone for 48 hours had he gone to jail....
Glasson estimated that his court is responsible for generating about 8,000 hours of community service a year. He said offenders sentenced to community service can be placed in any Nevada government agency or charitable or nonprofit organizations.
ACLU files complaint attacking constitutionality of LWOP for nine juves convicted of murder in Michigan
As detailed in this local article, which is headlined "ACLU fights law sentencing kids to life in prison," the American Civil Liberties Union "sued the State of Michigan today on behalf of nine people who were sentenced to life in prison without the possibility for parole for crimes they committed as juveniles." Here are more details from the press report:
The lawsuit, filed in U.S. District Court in Detroit, says Michigan’s sentencing laws constitute cruel and unusual punishment and violate the constitutional rights of the inmates. All nine were sentenced for first-degree murder or felony murder.
“These life without parole sentences ignore the very real differences between children and adults, abandoning the concepts of redemption and second chances,” Deborah Labelle, lawyer for the ACLU of Michigan’s Juvenile Life Without Parole Initiative, said in a statement accompanying the suit....
Under state law, 14-year-olds charged with certain felonies must be tried as adults. If convicted, they must be sentenced to life in prison without the possibility of parole, eliminating any discretion on the part of the judge....
Today’s lawsuit is part of a national campaign by the ACLU and other groups to overturn juvenile lifer laws. It said 43 states have such laws, but five states — Michigan, Pennsylvania, Louisiana, Florida and California — account for two-thirds of people serving life sentences for crimes committed as juveniles. The ACLU said Michigan has 350 such inmates.
Most of the nine plaintiffs in the case are well into adulthood. They include: Matthew Bentley, 28, who was sentenced to life in prison when he killed a homeowner in Huron County during a break-in when he was 14; Henry Hill Jr., 47, who was sentenced in 1982 for a fatal shooting during a confrontation with other boys in a park in Saginaw even though the ACLU said he didn’t fire the fatal shots; and Jennifer Pruitt, 33, who was sentenced in 1993 in the robbery-murder of a neighbor in Pontiac.
The ACLU said Hill fired shots in the air, not at the victims, and that Pruitt, a 16-year-old runaway, was not aware that the woman who took her was planning to rob the victim.
The ACLU has this press release about the suit on its website, along with this webpage with profiles and pictures of the nine plaintiffs in the suit. Intriguingly, one of the nine is a woman, and six of the eight male plaintiffs appear to African-American. This additional ACLU webpageprovides links to additional resources about juve LWOP, including this link to the full 34-page complaint filed today.
Eleventh Circuit affirms variance of 7+ years above child porn guideline range
The Eleventh Circuit has a notable opinion today in US v. Turner, No. 09-15074 (11th Cir. Nov. 17, 2010) (available here), which affirms an 25-year above-guideline sentence for a child porn downloader. The district court threw the book at the defendant in this case in large part because, two decades before his child porn possession, had been convicted in Alabama state court first degree sexual assault of a toddler. The Eleventh Circuit rejected various guideline-based and reasonableness-based challenges to the sentence.
The defendant's criminal history in Turner makes the outcome in the case not all that surprising or troublesome. Nevertheless, I found it notable that, while so many district judges and circuit courts have been heard to lament the undue severity of the child porn guidelines as applied to those who only download images from the internet, this case provides an example of a district judge concluding that these same guidelines were not nearly severe enough in one particular case.
Indiana Attorney General urges examination of death penalty's costs
As detailed in this effective local article, which is headlined "Lawmakers urged to debate steep costs of death penalty," Indiana's AG is urging his state to consider seriously the economics of the administration of the death penalty. Here are excerpts from the piece:
Attorney General Greg Zoeller used a legal summit to kick-start a statewide discussion of the financial burdens associated with the death penalty in Indiana. He told 75 lawyers and law students at a University of Notre Dame event Monday that state lawmakers and policymakers should take a hard look at the costs and fiscal burden of capital punishment cases in Indiana.
But he did not call for a repeal of or moratorium on the death penalty. He also had no specific proposals. Zoeller said the costs for a lengthy capital murder case can be exorbitant for a county government, including the costs of death penalty-qualified defense lawyers, expert witnesses, courthouse security and lodging for sequestered jurors.
And the costs to taxpayers continue to accumulate during the appeals process that can take 10 years or longer to play out. It cost more than $500,000 in defense costs alone to try a recent death penalty case in Warrick County, Zoeller spokesman Bryan Corbin said.
And at a time of shrinking revenue and when the judicial branch has little flexibility to cut budgets, Zoeller said legislators and policymakers should look carefully at cost structures driving the expense of death penalty cases at the trial and appellate levels.
“It is time that we in the criminal justice system have a candid conversation about the economic impact of capital punishment in Indiana,” he said. “I don’t claim to know the answers, but as the state government’s lawyer sworn to uphold the laws of Indiana, I hope we can trigger a frank discussion of these questions. We serve the crime victims and our constituents –- the taxpayers –- best if we confront a problem directly and objectively.”
Sen. Brent Steele, R-Bedford, chairman of the Senate Corrections, Criminal and Civil Matters Committee, said he doesn’t think lawmakers are interested in getting rid of the death penalty. “There are some cases that are so heinous in nature that the only penalty that is just is death,” he said....
Larry Landis, executive director of the Indiana Public Defenders Council, believes attempts to cut costs could cause shortcuts in defendants’ due process, increasing the chance of that an innocent person would be executed. “Cost is really a false issue,” Landis said. “We’re only dealing with a handful of cases filed each year. … In terms of criminal justice expenditures, it’s a drop in the bucket.”...
“If you want to avoid the expense of a death penalty case, don’t file it. File it as a life-without-parole case, you get the same result, without all of the expense,” Landis said.